Should Australia become a republic in the manner outlined by Deputy Prime Minister, Mr Tim Fischer?
Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney
On January 1, 1997, the Deputy Prime Minister and leader of the National Party, Mr Tim Fischer, announced a possible fallback position in the event that a majority of Australians decided in favour of a republic.
Mr Fischer presented what he termed an `absolute minimalist' model for a republic. Under Mr Fischer's model all references to the Queen or monarch would be removed from the Australian constitution and all functions performed by the Queen would be undertaken by a governor-general. This governor-general would be appointed by the chief justice of the High Court on the recommendation of the Prime Minister.
Mr Fischer's `model' has served to re-ignite the republican debate. The virtues and weaknesses of Mr Fischer's model have been widely discussed. There have also been calls for Mr Howard to give some clear direction on the question.
Background
A constitution is a binding document describing a country's form of government. Australia is a constitutional monarchy, with the Queen technically our head of State. As such the monarch theoretically has the power to veto legislation, dissolve a deadlocked parliament and is commander in chief of the armed forces.
These powers are in fact vested in the governor-general. In 1931, Australia decided to give governors-general vice-regal status, effectively making them heads of State instead of agents of the British Government.
The only power currently uniquely exercised by the monarch is the appointment of a governor-general. This is done on the recommendation of the Prime Minister.
Many of the duties of the governor-general as head of State are ceremonial or symbolic. For example, the governor-general opens federal parliament. However, the governor-general has a range of more substantial powers, most of which have never been exercised. The governor-general also has a number of `reserve powers' which exist largely as a matter of potential. There has been an occasion, however, when one of these reserve powers was exercised. (In 1995, the then governor-general, Sir John Kerr, dismissed an elected Prime Minister and his government and required that an election be held.)
If we were to become a republic, Australia would cease to have any connection with the monarchy. Our head of State, who might be titled president, would not act in any sense as the representative of the monarch.
At this point it has not been determined whether any new head of State would be elected or appointed. It has also not been determined exactly what that person's powers might be.
Further, there are those who argue that any switch to a republic should involve a total constitutional review, where questions such as the relative powers of the two houses of parliament could be considered.
Pressure to have Australia become a republic has been exerted for some time. There are those who argue that it was given impetus by Sir John Kerr's dismissal of the Whitlam Government in 1975. The Australian Republican movement came into existence in 1992. The former Australian Labor Prime Minister, Mr Paul Keating , strongly supported an Australian republic and it became part of Labor Party policy.
The National Party is currently opposed to a republic, favouring Australia continuing as a constitutional monarchy. During the last election campaign, the Liberal/National Party Coalition pledged that, if elected, it would hold a people's convention in 1997 to discuss all aspects of a republic. It also promised that this would be followed by a referendum which would allow all Australian voters to determine whether Australia becomes a republic. This referendum was to occur before the year 2000.
To date, the Prime Minister, Mr Howard, has not indicated whether he intends to honor his pre-election commitment to a people's convention on the republic.
Mr Fischer, in his New Year's day announcement, made the following suggestions:
The title governor-general be retained.
The position of governor-general be retained
All references to the monarch be removed from the constitution
The governor-general be appointed (or dismissed) by the chief justice of the High Court, on the Prime Minister's recommendation
The State governors be appointed by the chief justices of their respective supreme courts.
Mr Fischer has claimed that this is an `absolute minimalist' position, as he believes it involves changing only one position (replacing the Queen with a chief justice). Mr Fischer has also stated that this position should only be considered in the event of the Australian people indicating they want a republic. He has also acknowledged that his party still supports constitutional monarchy.
Mr Fischer's suggestion that the Governor-general be appointed by the chief justice has also raised the question of the separation of powers. One of the principles of our form of government is that there be a clear divide or separation between the elected, executive branch of government and the judges or judiciary.
The independence of the judiciary from elected government is claimed to allow judges to make impartial decisions free from the threat of government interference.
Arguments against the republic model proposed by Mr Fischer
There are three levels of criticism directed at Mr Fischer's republic model.
As Mr Fischer's is a `minimalist' position he has attracted criticism both from those who want a more radical version of a republic for Australia, as well as from those who do not want to see Australia become a republic at all. There are also those who argue, from a more disinterested position, that there are particular weaknesses in Mr Fischer's suggested model.
Those who criticise Mr Fischer's model because they consider it does not go far enough, have a number of arguments to offer.
One key concern is that Mr Fischer's proposal does not appear to involve any codification or limitation of the current powers of the governor-general. There is concern that this would mean that the `reserve powers' of the governor-general would remain.
Those who object to this consider it inappropriate for an unelected person to hold such powers in a democracy. To those with this view, Mr Fischer's proposal is concerning because it would continue with the current practice of having the governor-general appointed and not elected, yet it would leave the Head of State with large and not clearly defined powers.
This is the concern of Professor Donald Horne, who, while welcoming Mr Fischer's willingness to enter the debate, has stated that many areas of the Constitution will need to be amended so that the head of State does not have unlimited powers.
The chair of the Australian Republican Movement, Mr Malcolm Turnbull, has also criticised the proposed retention of the title governor-general. Mr Turnbull believes that this would be a confusing hangover from the monarchy.
It has also been suggested that if there is no provision for the election of the head of State either by direct popular vote or by Parliament, then that person cannot be viewed as representing the people.
The Age, in its editorial of January 3, argues that without some form of election for head of State `then the notion that in a republic the head of State in some sense represents the people could become empty.'
On the other hand, those who object to any move toward a republic have been critical of Mr Fischer's proposal as unnecessary.
Federal Liberal MP, Mr Tony Abbott, a former executive director of Australians for Constitutional Monarchy, has stated that removing the Queen's powers is `unnecessary self-inflicted pain'.
Mr Abbott has argued that in practice the governor-general is already the head of State and that removing the Queen from her limited role in appointing the governor-general will in no way alter the functions the Governor-general already performs.
Jim Ramsay, the Victorian convenor of Australians for Constitutional Monarchy, has presented the most common argument usually offered against changing our current system. This argument is that the present system works well and therefore does not require change.
Some prominent members of the National Party have criticised Mr Fischer's proposal as a movement away from the party's declared policy of support for a constitutional monarchy.
The National's Senate leader, Senator Boswell, has stated, `Our party's position is fairly clear - it is to maintain the status quo ... As leader of the National Party in the Senate, I wish to send a strong signal that I will be faithful to that policy.'
The final set of criticisms of Mr Fischer's proposal comes from those with doubts about its implications. Those who hold these concerns appear to believe that some of the possible consequences of Mr Fischer's proposal make it less minimalist than it might at first appear.
The most fundamental criticism of the proposal is the claim that it would dilute the separation of powers which currently exists between the executive and judicial arms of government.
This position has been put by the Victorian premier, Mr Jeff Kennett. Mr Kennett has claimed that the proposal is `fraught with danger' and is an `enormous setback' to judicial independence.
Mr Kennett outlined a possible scenario in which a chief justice was called on by an elected government to dismiss a governor-general. Mr Kennett claims that this would have to be a political decision on the part of the chief justice and so would break down the separation between the judiciary and government.
A similar view has been put by Dr Don Rothwell, Sydney University Associate Law Professor. Dr Rothwell has claimed that the appointing and dismissing of governors-general would be an executive function and so would be incompatible with the exercise of federal judicial power.
Cheryl Saunders, director of the Centre for Comparative Constitutional Studies in the University of Melbourne law school has also argued that a chief justice is unlikely to have significant moderating influence on the actions of a prime minister.
Cheryl Saunders argues that chief justices might merely rubber stamp prime ministerial recommendations for governors-general with the result that the governors-general were not people of sufficient substance. If, on the other hand, chief justices were to contend with prime ministers they would become involved in political disputes and thus the separation of powers would be broken down.
Arguments in favour of the republic model proposed by Mr Fischer
There are two levels of argument offered in favour of Mr Fischer's suggested model. On the one hand there are those who are simply glad to have the debate re-opened by a significant government leader. On the other there are those who see merit in all or at least elements of Mr Fischer's proposal.
Both opponents and supporters of Australia becoming a republic have welcomed Mr Fischer's statements. Those who support a republic appear to be glad to have the debate re-energised by Mr Fischer's remarks. Some pro-republicans and others appear to see Mr Fischer's intervention as a virtual admission that an Australian republic is inevitable. For example, John Short, commenting in The Australian on January 4, 1997, noted, `Tim Fischer's surprise intervention this week in the republic debate ... was an effective acknowledgement by top national party officials that Australia's becoming a republic was inevitable.'
Among those who are not in favour of Australia becoming a republic there are those who appear to be glad to have the debate re-opened because they believe it will require discussion and public education for the republic proposal to be defeated.
For both of these groups of people the details of Mr Fischer's proposal are largely insignificant, other than that the proposal will serve as the starting-point for further debate.
There are, however, those who favour all or at least elements of Mr Fischer's suggestion.
One of the key elements of Mr Fischer's proposal that has attracted support is that it does away with the need for an elected head of State.
Those who see problems with an elected head of State maintain that having to go through the rigours of an election campaign might dissuade many eminent and highly suitable Australians from considering the position.
Dr Brian Costar, associate professor of politics at Monash University, has stated, `Popular election and parliamentary selection methods involve presidential aspirants publicly declaring their candidacies and either entering an election campaign or allowing their reputations to be subjected to debate under parliamentary privilege.
`Two of our most successful governors-general, Sir Zelman Cowen and Sir Ninian Stephen, have stated publicly that they would never have considered the office if they had had to campaign for it.'
It has also been argued that the necessity for financial supporters which comes with the cost of election campaigns might well reduce the independence of the head of State as he or she would assume office with financial obligations to those who had backed the campaign.
There is also concern that having to campaign for the office might well leave the head of State with party political obligations which would further undermine his or her independence.
This position was explained by The Age in its editorial of January 5, 1997. `We suspect that most Australians would prefer a head of state who is ... detached from politics and so able to act as an independent guardian of the Constitution and uncontroversial symbol of national unity. Direct campaigning would necessarily involve political campaigning and, quite possibly, partisan candidates.'
Another argument supporting the notion of an appointed rather than an elected head of State is the claim that appointment would reduce the scope for conflict between the appointed head of State and the popularly elected Prime Minster.
Were both able to claim a popular mandate as a result of having been elected, then, should they have a severe disagreement it would be extremely difficult to determine who had the ultimate authority.
Dr Brian Costar has noted this `conflict of mandate problem' and believes it would exist whether a head of State were popularly elected or elected by Parliament.
Finally there are those who argue that the practice of appointing governors-general has resulted in many highly able people assuming the position, and thus the practice should continue. This view too, has been commented on by Dr Costar, who has stated, `It must be said that this [the current] system of appointment has produced governors-general of good to excellent quality.'
There are others who essentially oppose a republic but who are attracted to Mr Fischer's proposal because they accept its minimalist nature. Those who argue from this position maintain that if there must be a change then it would be best to have as minor a change as possible.
There are also those pro-republicans who have argued that Mr Fischer's proposal is the sort of compromise that may well gain popular support and thus bring about acceptance of a republic in a referendum.
Commentator for The Australian, John Short, has stated that Mr Fischer `knows he cannot afford to "frighten the horses" in his own party on this sensitive issue - with the result that his first public comments on a possible republican model have only involved what he, himself, has described as an "absolute minimalist" option ... Fischer could be the man most likely to deliver a consensus on the model for an Australian republic.'
Further implications
If nothing else, the recent comments of Deputy Prime Minister, Mr Tim Fischer, have served to revive the republic issue.
Mr Fischer's proposal will be one of those considered at a special National Party national council meeting on March 1, 1997. The National Party has indicated that it will hold such meetings on a regular basis to discuss the questions surrounding constitutional change.
What this seems to promise is regular media attention being focused on the possibility of an Australian republic.
Some commentators have suggested that Mr Fischer and the Prime Minister, Mr Howard, have an essentially similar approach to the republic question, in that both, though pro-monarchy, wish to see the republic widely debated.
There are others who have maintained that this is not so and that Mr Howard would prefer to postpone discussion of the questions involved for as long as possible.
Whatever the case, the recent statements of Mr Fischer may have forced Mr Howard's hand.
There is now mounting pressure on the Prime Minister to indicate what will be happening regarding the people's convention on republicanism which the Coalition promised for 1997.
There have been some commentators who have suggested that Australia Day, 1997, would present an ideal opportunity for the Prime Minister to make his government's strategy on the republic clear. It remains to be seen whether he will do so.
Of overall interest is the apparent change in the nature of the debate surrounding republicanism. There has not been the spirited defence of monarchy and links with Britain that used to be a feature of the debate. Nor have there been impassioned assertions of Australia's national independence. Rather, each side of the debate appear to be focusing on the practical consequences for effective government which would be the result of their favoured position.
As a side issue, one commentator has noted that it is not only the federal constitution which may need review. New South Wales and Queensland are each reviewing aspects of their constitution. It has been argued that Victoria's constitution is in significant need of a similar review. To date there is no indication that such a process is likely to occur.
Sources
The Age
3/1/97 page 1 news item by Gervase Greene, `Fischer raises heat on PM over republic'
3/1/97 page 10 editorial, `The republic draws closer'
3/1/97 page 11 comment by Jim Ramsay, `Is having a republic worth all the bother?'
4/1/97 page 3 news item by Shane Green and Gervase Greene, `Premier slams republic proposal'
5/1/97 page 12 editorial, `PM must grasp the republican nettle'
6/1/97 page 5 news item by Gareth Boreham, `Young Libs raise republic pressure'
6/1/97 page 11 comment by Brian Costar, `Minimalist approach to republic'
8/1/97 page 1 news item by Laura Tingle, `Split on Fischer plan for republic'
10/1/97 page 5 news item by Laura Tingle, `ALP president tells Nats to seek changes'
10/1/97 page 15 comment by Matthew Townsend, `Victoria's constitution needs review'
The Australian
2/1/97 page 1 news item by David McKenzie, `Fischer floats plan for a republic'
3/1/97 page 1 news item by David McKenzie, `Crown out in Fischer model for republic'
3/1/97 page 1 comment by John Short, `Lone stand to lift party's role'
3/1/97 page 2 news item by David McKenzie, `Fischer earns republican nod'
3/1/97 page 2 news item by Bernard Lane, `Separation of powers fears: lawyers'
3/1/97 page 12 editorial, `Fischer shows a lead on republic'
3/1/97 page 13 comment by Cheryl Saunders, `The flaw in Fischer's republic plan'
4/1/97 page 1 news item by David McKenzie, `Nationals' chief tips swing to republic'
4/1/97 page 4 comment by John Short, `Fischer leads the way where Howard fears to tread'
6/1/97 page 2 news item by David McKenzie, `Anderson promotes debate on republic'
6/1/97 page 2 news item by Rachel Hawes and Fiona Carruthers, `Young Libs urge convention agenda'
6/1/97 page 11 comment by Tony Abbott, `How Queen's powers may be reasonably limited'
8/1/97 page 1 news item by David McKenzie, `Nationals attack Fischer on republic'
9/1/97 page 10 editorial, `Fischer must resist Nats' backlash'
10/1/97 page 3 news item by Fiona Carruthers and David McKenzie, `Collins urges PM to back convention'
What they said
`If after a fair dinkum debate, the people of Australia opt to go for a republic, then this model is worthy of consideration'
Deputy Prime Minister, Mr Tim Fischer
`The present system works well. It allows us to have stable government in this country.'
Former governor-general, Bill Hayden