Roasting the Governor-General: a recipe for an Australian Republic

Australia is a lucky country.

But when I say lucky I mean more than a beautiful country which prides itself on the egalitarian principles of mateship and a fair go. I also mean lucky because we have something only a few nations have ever had: hindsight to draft the greatest Republican constitution the world has ever known. Hence, a Republic can inspire constitutional efficiency by implementing what has worked while discarding that which has not.

Monarchists would immediately reply: efficiency? Our Constitution has worked for more than 100 years. “Why fix it if it ain’t broken?” The reason is three-fold.

First, the drafters of the present Constitution had what Republicans have today: hindsight to alter the American and British Constitutions for the better to avoid inefficient glitches. Today we have the hindsight to adjust the deficiencies of this Constitution.

Second, the same argument could have been used to prevent us becoming a constitutional monarchy: the federation before 1901 didn’t break so why fix it? This is akin to arguing that just because the candle works, we shouldn’t use a light bulb.

And the final criticism is inspired by the writings of Karl Popper. According to Popper, just because something has worked up to now, does not mean it will work into the future. After all, it only takes one observation to expose shortcomings in the present model. In turn, this prompts us to create a more ideal form of government as our knowledge and understanding of humanity deepens. In other words, hindsight allows us to make things better.

A mixture of logic and historical precedent proves the point, however moot.

Scenario one

The Governor-General refuses Prime Minister Rudd the right to dissolve Parliament. No election is called. The Governor-General dismisses Kevin Rudd, appointing Brendan Nelson as Prime Minister. The Australian Governor-General's website actually states that he 'refuse a request for an election' and even 'dismiss the PM'. Indeed, this would be analogous to what John Kerr did to Gough Whitlam and what Governor-General, Viscount Byng of Vimy, of Canada did in 1926, except the latter refused to dissolve Parliament. So much for democracy.

A similar crisis occurred in Fiji in 1977. Likewise, in the Easter Crisis of 1920, the executive dismissed the entire Cabinet despite the cabinet being elected a few months beforehand. However, if the Australian Governor-General were to use s62 of the Constitution to interfere he could be called undemocratic, while if he does nothing, he could be labelled as impotent.

Scenario two

Parliament passes a bill that is overwhelmingly supported by both Houses. The Governor-General refuses to give royal assent and vetoes the bill. Not only is this possible but it is analogous to the constitutional crisis that happened in Belgium in 1990. Convention stipulating that the Governor General act on the advice of ministers is not binding and it certainly didn’t stop the King of Belgium. It is a matter of the will of the people versus the executive.

It is true that the Governor-General sends many bills back for amendment; this is not necessarily a bad thing. However, imagine the confusion surrounding the bill if it couldn’t be signed until after the five-year tenure of the Governor-General expires. There is nothing stopping such chaos happening here. The Governor-General is not held fully accountable in the way a Prime Minister with a mandate is.

There must be a more democratic alternative.

Allow me to explore the outline of a model that enhances the legitimacy of the check and balances of the status quo.

But what system would supplement the model we already have?

I support melding the Westminster system with the American executive model to create what I call the “Washminister II” system. I personally find the Governor-General an excessive relic. The person who enacts policy should represent the Australian people: this is the person leaders of other Heads of State want to speak to. This is where policy between nations starts fermenting. In other words, abolish the Governor-General and the Prime Minister and instead have a President.

I believe there are 12 essential elements to a new system that ameliorates the shortcomings of the American model. Some are institutional reforms, others reiterate what has worked in the Westminster system.

1. If one were to adopt an American system the President and Vice President should sit in the House of Representatives and Senate respectively. Question time should be more like the British system where the Leader of the Opposition - who may or may not be a Member of Parliament - and Prime Minister roast one another.

Indeed, John McCain has personally welcomed such a shift in America for the President to be accountable to Congress. However, Parliamentary accountability is only half the issue. Question time has become an obfuscation match. Instead what is needed is an ability for members of the public to ask questions and respond to those questions for a certain period of time. Passion, particularly if the politician is avoiding the question, should be encouraged in accordance with Parliamentary etiquette.

Democracy of this kind is not a gimmick: I doubt any politician will dare speak to someone who elected them in the same manner they speak to someone on the other side of the chamber. That is what I call a direct democracy and accountability and it is hindsight that would allow us to make such a possible reform.

2. Parliament should enact laws that promote absolute transparency of financial funding to Presidential election campaigns. Parliament should have the power to institute caps on funding of certain institutions on BOTH sides of politics. It is the excesses of the American system that allow us to make such reforms to avoid “bling bling” politics. So the irony is this: in appropriating the American Constitution, hindsight allows us to move not towards the American system but away from it.

3. The President would select his Cabinet from Members of Parliament which may include the Vice President. It is the notion of responsible government in the Westminster system that would allow us to meld this model onto the American system.

4. Limits should be set to two four-year terms for Presidents thereby avoiding tyrannical powers which are associated with fascist regimes. Likewise, rule by decree to any degree ought to be outright unconstitutional. Such a limit may even extend to disallow amending such a prohibition even in a referendum.

5. Correlated with the term of office should be the ability to hold a President accountable. First term Impeachment may occur via a two-thirds majority of both houses while second term Impeachment may occur by a simple majority of both houses. Failure to show up to “x” amount of compulsory sittings in Parliament without a parliamentary pardon in his first term may make the President ineligible for a second presidential nomination. In the second term, such a failure could  make him eligible for Impeachment. History tells us that leaders can sometimes go feral in their second term: Nixon and Clinton lead the pack.

6. Give the President the power to dissolve the Parliament if there is constant disagreement between the two Houses of Parliament. Furthermore, certain triggers should be applied to the money bills: if after “x” amount of time the budget fails to pass even after a joint sitting an election occurs 40 days later.

This is not to say the President cannot dissolve Parliament for an election as soon as it happens. Indeed, the legislature can also dissolve itself for an election with the right majority. But, if all this fails the clause dissolves both Houses of Parliament.

Also, make election dates set so Parliament shall automatically dissolve, say, three months beforehand. This ensures no repeat of scenario two: someone refusing to dissolve Parliament for political purposes or an unelected individual being Head of Government.

7. My model would disallow the veto powers of the President. As soon as a bill passes both Houses it becomes law. Indeed, one man should not be able to override between 50 to 66 six per cent of the legislature, rather, the President could simply have the power to freeze a bill except perhaps a budget bill. Furthermore, the bill may be frozen for no more than one year and no more than once in his or her entire Presidency. Nor could the President then freeze a bill 28 days after the bill passed Parliament. The bill may be further amended and debated and passed by Parliament. This again redresses the deficiencies associated with scenario one and the American model. Here regulation still exists but without overriding the will of the people.

8. Statisticians can debate which method of voting truly ensures accurate representation. After all the Maltese, who also use the same single preferential system as ours, had an Opposition party who had won more than half the votes but had less than half the seats in the 1981 election.

9. Australia needs a bill of wrongs, not rights. We need a prohibition on not only what the legislature and executive can do but what the judiciary can or cannot do.  Republicanism is not a one-way ticket to judicial activism. Indeed, the primary purpose of a Constitution is not policy, rather it is about limiting the intrusion of policy on individual freedoms (negative liberty) and how we come to deliberate on policy. Furthermore, the Canadian Constitution teaches us that an implied right to privacy should not equal abortion. It should be a decision left for the legislature to decide the logistics, not the courts.

Of course, how we deliberate on policy will influence what the policy is but a constitution should not set policy in stone (positive liberty). I therefore believe that it is wrong for the state to prohibit free speech and the press, which are essential to fruitful deliberation.

10. The Irish Constitution allows the President to refer a bill to the Supreme Court to determine its constitutionality. This should be an option here. Some might argue this would lead to a politicised High Court. This assumes it already isn’t. Moreover, caps on the amount of appointments each President would make would minimise this issue. In the instance where a judge who is appointed by the previous government dies after the cap is reached, the cap would still be in place. If the President exceeds the cap, he or she may only appoint another judge if a situations occurs where there are less than five judges.

11. The eleventh issue relates to war. To deploy troops overseas for the purposes of an invasion the President should seek either the support of a two-third majority of one house of Parliament or a majority in both. It is only then the President can become Commander and Chief unless a foreign country declares war, or a direct attack occurs on home soil. Currently the Governor-General as Commander-in-Chief acts on the advice of the Prime Minister. A stronger check and balance is needed when lives are put at risk.

12. Finally, allow decentralisation to be an option in the Constitution. The Parliament may hand over powers to the States, particularly the power to set tax rates. Therefore, in an ideal world, the States would set the numerical value while Canberra would set the literal regulations and qualitative side of things. However, federalism in its current form is code for a blame game between the States. Instead I support clear accountability on health and education and as such believe they should fall under the role of the Federal government.

Yes, Parliament may decentralise policies to the States and enact legislation for certain communities if need be, but if portfolios are decentralised they must be decentralised entirely, so no overlaps in policy occur.

This model would prompt clearer accountability between State and Federal governments, hopefully avoiding the blame game.

Monarchists would argue the present systems accountability derives from an impartial umpire: the Governor-General. Wrong. The Governor-General has the potential to be a tyrannical individual where he is not above politics but in it. After all, most former Governor-Generals are politicians and it is a matter of time before a Governor-General will abuse his or her power. This cannot happen if his or her powers are codified or held accountable by the people. Indeed, it is the people who are the true umpires. It was the people not the Governor-General who had the power to replace Whitlam in the end. It was the people who vetoed WorkChoices. It is Question time and a free press that allows effective critiquing of the law. And it is the High Court that strikes down unconstitutional laws.

It is for these reasons I support a directly elected President especially when powers are reserved to the Parliament and to the people. The sunset of the constitutional monarchy can itself be the sunrise for Australian democracy and constitutional efficiency.