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New way ahead for the republic

By Peter Crayson

As many republicans will recall with justifiable outrage, flyers distributed by monarchists on the day of the republic referendum cynically proclaimed, "If you want the people to vote for the President, vote NO", but the very same monarchists later triumphantly asserted that this very same "NO" vote was a strong endorsement of existing monarchical arrangements.

Nevertheless, it must be conceded that one of the main reasons - if not the main reason - the referendum failed was indeed that the people would have had no direct say in choosing the President under the proposed model.  The model proposed that the PM would put a single name to Parliament, and that the politicians would vote to approve that person.  A nominations committee would have advised the PM, but this was composed of politicians plus others appointed by - yet again - the PM.  Adding insult to injury, the PM was free to completely ignore the committee's advice, and worse, the PM's power to sack the President arguably gave more power to the PM vis-a-vis the President than he/she currently exercises vis-a-vis the Governor-General.

Despite clear popular support for some sort of republic, the failure of the minimalist and direct electionist camps to sensibly reconcile their differences and overcome their disagreements ultimately sank the referendum.  Prominent direct electionist republicans proposed a President elected by the people, but unlike the American system, this would be a non-executive head of state, comparable to the Irish President.  Although this attracted significant public support, a major problem with it was that a directly elected President armed with the same powers as the Governor-General (and possibly also some of those of the Queen) would still enjoy significant constitutional powers, including the power to appoint or dismiss a PM - circumstances under which ugly constitutional confrontations involving competing claims to a mandate between the President (elected by the people) and the PM (elected by his/her party) could easily be envisaged.  The only solution, it seemed, was to codify the powers of a directly elected President, removing much of the President's discretion in the exercise of his/her powers whilst perhaps reluctantly accepting that it would be likely that a political figure would be elected to the post.

There is, however, a better model available, which might very well pleasantly surprise a majority of both republican camps - and by extension, most Australians.  It neatly combines the best elements of the present system and of the most popular republican models, it's uncomplicated, and it will function reliably.  I've dubbed this model the "Constitutional Council" model.  In this model, five "Constitutional Councillors" would be directly elected nationwide for a term of six years.  These Constitutional Councillors would elect one of their number to be the President (who will have been directly elected as a Constitutional Councillor), also for a term of six years.  The President as Head of State, and the Constitutional Council, would effectively replace the Queen, which (unlike the Queen) with its legitimacy arising from its democratic foundation and its continuous domestic presence, would symbolise the ultimate sovereignty of the people.  And unlike the Queen, the President and Constitutional Councillors could take an active role in Australian public life.  Constitutional Councillors could be neither MPs nor members of political parties, and it's quite conceivable that they could be elected by voluntary postal ballot in a similar manner to delegates to the 1998 Constitutional Convention.

The President and the Constitutional Council would perform a mainly ceremonial and symbolic role, and would, like the Queen or the Governor-General, retain the right to be advised, to encourage and to warn.  The President (like the Governor-General) would sign bills into law, would adminster oaths or office, and would be the titular Commander in Chief of the armed forces.  The President would also be empowered to send bills back to the Parliament for reconsideration once, (a power currently enjoyed by the Governor-General but never exercised), but would have no power to veto bills (a power which the Queen does currently enjoy but has never exercised).  The President, however, would retain none of the reserve powers; including:


But were the description of the model to stop here, this would leave a gaping hole.  As this model dispenses with the Governor-General, and as many of us would be uncomfortable with a directly elected and probably politically inclined President exercising the reserve powers, who would fill the role of an impartial constitutional umpire fit to exercise the reserve powers?  What other figure exists under our current constitutional arrangements who acts - or at least, is supposed to act - as an impartial umpire?

If you were thinking of the Speaker, then we're thinking along similar lines.  The problem is that while the Speaker is supposed to act as an impartial umpire, this is demonstrably not always the case in practice.  But rather than rashly rejecting the Speaker on the basis that his/her impartiality is dubious, let's consider how can the office of Speaker be reformed to not only bring more fairness to proceedings in the House of Representatives (an outcome all parliamentary parties profess to support), but also to make it an office suited to exercising the reserve powers.  How can the Speaker, with the additional responsibility of exercising the reserve powers, become more independent of the Government and more politically impartial whilst retaining democratic legitimacy?

Here's how.  The Speaker would no longer be an appointee of the governing party, nor an MP, nor even a member of a political party, but would be appointed by the Constitutional Council.  Nominations could be submitted by the past or present Speaker, any past or present Prime Minister, the Leader of the Opposition, or any five MPs.  Candidates for the office would not be restricted to those willing or able to run for a popular election; in fact, the nomination process is more likely to produce incumbents of calibre comparable to Governors-General.  The Speaker could also be dismissed by the Constitutional Council, but only upon a vote by the House of Representatives requesting this.  As the occasions on which reserve powers are exercised are few and far between, and as the Speaker would no longer have a role representing a House of Representatives electorate, there would probably be at least as much time available to the Speaker to attend to his/her duties as presiding officer of the House of Representatives as is available under the existing arrangements.  This reform of the office of Speaker would bring us into line with the UK House of Commons, where many years ago now the office of Speaker of the House of Commons was substantially reformed and depoliticised.

What of the remaining powers that the Governor-General exercises - powers which in practice, or by convention, are exercised only in accordance with the advice of the Prime Minister or of the Federal Executive Council - but which have not been allocated in this model to either the President or to the Speaker?  Since these powers are always exercised in accordance with the advice of the Prime Minister or of the Federal Executive Council - that is, the involvement of the Governor-General is a mere formality - I have proposed that the process be rationalised so that (in most cases) they would be exercised directly by the Prime Minister or by the Federal Executive Council.  And that pretty much wraps it up.

So for the direct electionists, we would have a directly elected President as Head of State, and the problem of codification of powers is avoided.  For the minimalists, we would have an impartial constitutional umpire appointed by a democratic committee - the Constitutional Council - who would exercise the reserve powers without fear or favour.  And as a bonus, the office of Speaker is depoliticised, as most politicians and most informed citizens agree it should be.

The republic question will undoubtedly be put to the people again before long, and the Constitutional Council model may well be the most workable, democratic and popular way ahead.  Read much more about it on my web site at http://petergc.tripod.com.