Australia Will Become A Republic But It Will Succeed On Tactics More Than Emotion

The Australian Republic debate is back on again, at least until people realise it actually isn’t the most important issue of our time, because the only model which could possibly succeed at a referendum is the minimalist one.

Even the change to a minimalist republican model is not entirely symbolic. It should and will happen, probably within the next 10 to 20 years. There are many reasons for Australia to become a republic, most important of which is cleaning up the Constitution to permanently remove historical anomalies which no longer logically fit with a modern, independent Australia. However, the process of changing to even a minimalist republican model is not as simple as some believe.

By minimalist model, I mean substantially the one put to the 1999 referendum: that the Australian Head of State or President has the same powers as the current Governor General and the method of and conditions for appointment and dismissal are clearly set out in the Constitution. Effectively, it means keeping the Governor General, with a few tweaks, which are:

·         Appointment requiring a 2/3 (or similar) majority of both houses, where currently the GG is chosen by the Prime Minister (and formally appointed by the British monarch). A 2/3 majority was proposed in the 1999 referendum.

·         Clarifying the method of and conditions for dismissal of the GG. The 1999 referendum allowed the GG / President to be dismissed by the Prime Minister, with the requirement that the dismissal be ratified by the House of Representatives.

·         Possibly changing the title to President. 

With the same delusional ignorance as evinced by many during the 1999 republic referendum debate, Peter Fitzsimons believes, as do the Australian Republican Movement (ARM) that we should begin the process by simply putting the following question to the people and it would be answered with a resounding “Yes”:

Q: "Do you think Australia should have an Australian as our head of state?"

Then we will ask the public to choose from a set of proposed republican models and finally put the chosen model to the public in a referendum.

It smacks of enthusiastic amateurism: we’ll sort out the “big”, political question and worry about the details afterward.

But that’s not what leads to successful referenda.

What they really mean is that the above question would be asked in the form of a plebiscite: a non-binding vote of the entire Australian electorate. The choice of specific form of the republic would then be via a second plebiscite and in a third stage, the required constitutional changes enacted via a subsequent referendum.

The ARM and Fitzsimons’ error is one of logic.

The first plebiscite decides whether a majority of Australians prefer some type of republic over a constitutional monarchy. Suppose they do. Let’s write this as R > M, where R is the number of voters who want a republic and M is the number who want the status quo.

The second plebiscite asks ALL voters, including constitutional monarchists to rank a set of competing republican models: R₁ > R₂ > ... > R_n with R₁ + R₂ + ... + R_n = R + M.

They then assume the most popular republican model R₁ would automatically be chosen ahead of a monarchy in the ensuing referendum. Therein lies the flaw.

The republic model ranking is not only decided by the R people who want a republic: the M monarchists also get to vote. The monarchists will almost certainly skew the relative proportions for each republican model and possibly even the order of the ranking. In fact, most monarchists would choose a minimalist republican model, almost certainly ensuring it would win the second plebiscite.

What the first plebiscite demonstrates is that (R₁ + R₂ + ... + R_n – M) > M. But that counts all the people who want at least one of the types of republic and shows they number more than the people who don’t want any type.

The referendum asks the public to decide the proposition R₁ > M after that particular republican model has been chosen in the second plebiscite. But then nearly all the monarchists who contributed to republican model R₁ winning would no longer vote for it. It could easily be the case that both the monarchists and many of the republicans who did not have their model chosen would vote against republican model R₁ and so the referendum would fail.

Let’s look at a concrete example to see it better:

There are about 15 million eligible voters in Australia. Suppose 9 million want a republic of some type and 6 million want to keep things the way they are. The first plebiscite would easily be won by the Yes case with 60% of the vote.

Many republicans believe Yes would be significantly higher, but I think they are underestimating the number of people who would be worried by such an open ended process and what might eventually come out of it. The republicans also don’t grasp the degree to which their undercurrent of moralising and the association of the Yes case with the left turns people off. There is a subtle denigration of people who don’t want to change the Constitution as old conservatives and (probably racist) rednecks. This is felt and it galvanises the No case.

Now, after the republicans winning the first plebiscite, everyone, monarchists included, get to choose a republican model. Suppose there are 3 choices: the minimalist model, a directly elected President with similar powers to the GG and a directly elected President with significantly increased powers. Quite possibly, the middle choice might be the most popular amongst republicans. Suppose of the 9 million republicans, 3 million want the minimalist model, 4.5 million want the second model and 1.5 million want a President with increased powers. But now add in the monarchists’ votes. Almost certainly, the overwhelming majority, let’s say 90% = 5.4 million would choose the minimalist model. It would then resoundingly win the second plebiscite with 56% of the vote.

Finally, we have our referendum. Almost all the monarchists who chose the minimalist republican model in the second plebiscite now vote against it, as do many angry republicans who want a directly elected president, as they did in 1999. Suppose 150,000 monarchists change their minds and vote for the minimalist model but 25% of the 6 million direct election republicans vote against it for tactical reasons. This would give the Yes case 51% of the overall vote. However, it may not be evenly distributed. Look at the 1999 results. It is certainly possible for the Yes case to garner 51% overall, but lose in QLD, WA and TAS (or SA). The Yes case loses because it did not carry a majority of states and we have no republic.

The above is a particular, but quite possible example. It is one of many scenarios which would lead to the same result: the majority of Australians wanting a republic, but failing to get one due to misunderstanding of the political process and mismanagement of the campaign.

What the analysis shows is the crucial importance of political tactics derived from logic and psephology, not emotion and ideology. Avowed republican Malcolm Turnbull is correct in imploring the republican side to move slowly and get the campaign right.

The ARM and Fitzsimons are tacitly assuming that a sufficient number of republic supporters who did not have their model chosen in the second plebiscite would come across to support the winning model instead of the status quo. That might happen if this was a one shot deal, but it’s not. It’s not what happened in 1999, where many supporters of a directly elected president rejected the minimalist republican model in the hope of getting what they wanted later.

Their wish for a directly elected President might be naive, but their tactics were not. They believed that if the minimalist model won, they would have less chance of later changing to a directly elected President than they would of implementing their preference at a future referendum which decided between a directly elected President and the current constitutional monarchy. I think their belief is wrong, however given the belief, their tactics were not.

Without a clear definition of "Head of State": the powers, responsibilities, who is qualified and method of appointment and dismissal, the seemingly simple question “Do you want an Australian Head of State?”, which most Australians support in principle (and probably supported in 1999) could well be defeated.

One problem with the Yes/No first, then decide on the details approach is that many people who want a minimalist republic (like me) will vote No to defend against the otherwise very real possibility of getting the type of republic we most definitely don’t want: one with a popularly elected president with unreasonable powers which radically alter the balance of responsibility and authority between the executive and parliament.

Another serious problem is that any change to a republic requires significant changes to the Constitution.

Sections 2 (appointment by the Queen), 59 & 60 (Queen’s right to reject or withhold assent from legislation passed by the parliament) and 74 (right of appeal to the British Privy Council) need to be repealed in their entirety.

Sections 3 & 4 (salary and hold no other office), 61 (executive power vested in the Queen) and 70 (powers of the GG) need to be completely rewritten, defining the powers of the new Head of State / President. Additional sections need to replace s2, setting out the method of selection, appointment and dismissal of the Head of State.

Many other sections require the replacement of the words “the Queen” and possibly “the Governor General”, however these are trivial matters.

All of this can be accomplished with a single piece of legislation. This bill would be passed by both houses of parliament and the purpose of the republican referendum would be for the Australian electorate to accept the legislation.

That’s fine in theory, however in the matter of a transition to a republic, it really is an all or nothing job. We can’t just change some of the above sections of the Constitution and not others, so we can’t have multiple bills, accepted or rejected via distinct referendum questions. Thus, it is crucial to ensure the powers and method of appointment and dismissal of the new Head of State will be agreed to before putting the referendum question.

If a majority of voters strongly disagree with one or more elements, say the powers or the method of appointment, the entire bill may be rejected on the grounds of “It works well enough as is. There’s no hurry. Let’s go back and get these changes right and then we’ll agree”.

This is in large part what happened when the 1999 republican bill was defeated.

In 1999, the question asked was:

A proposed law: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 the members of the Commonwealth Parliament.

It was accompanied by legislation which addressed almost all of the Constitutional reform issues above. One omission was that the bill did not codify the conditions which would allow the dismissal of a government. Currently, s5 simply says the GG has the authority to do it. Over codification is not a good idea in a common law polity, however with only two Australian precedents, the inclusion in s5 of some guiding principles may have been helpful. Such changes may have been omitted in the belief that any proposal would of itself have created sufficient division to see the entire question rejected.

The problem with the 1999 referendum was not that the legislation accompanying the question was insufficiently thorough, or that it contained sneaky proposals, but that it was poorly explained.

The enabling legislation was necessarily complex. Despite broad internet access, the web was not such an integral part of life as it is today. Many people never saw the text of the constitutional changes, let alone had them explained. The Australian Electoral Commission distributed a pamphlet summarising the Yes and No cases, but that’s not really analysis of the effect of the republican proposal. I followed the debate closely and yet recall very few instances where the why and how of the mechanics of the political and Constitutional changes were openly discussed in fora where the public could ask meaningful questions and get meaningful answers. The serious problems accompanying a directly elected President with increased powers were inadequately explained to supporters of that position (even the ones who would listen).

The Yes campaign focused primarily on symbolism, national maturity and even had an “It’s Time” feel, with a feast of celebrities and “prominent” Australians telling us all that we could really only be a properly grown up nation by becoming a republic. That was pretty much their whole argument. Even the AEC’s pamphlet had 4 pages of Yes argument and 9 pages of No. The republican movement couldn’t even manage to find sufficient points to fill 5 more pages, which the AEC intentionally left blank, presumably to demonstrate they had given equal opportunity to both sides, but in effect giving the sense that the Yes case was significantly weaker.

The Yes case’s lack of substance, together with the perception of it being led by elites made it any easy target for Australians For A Constitutional Monarchy (ACM), who cast the republicans as posturing, elitist wankers, trying to impose their ideology on a public who didn’t want something which wasn’t broken “fixed”. The “It’s Time” tone added to the feeling that somewhere in there was the inner city, academic leftist agenda and ACM certainly exploited this. Former High Court Justice Michael Kirby penned a useful analysis of why the 1999 referendum failed.

Without the clear definition of role and powers, the same scare campaign which succeeded in 1999 will probably succeed again, this time because it will actually be rooted in fact.

Another problem which I don’t believe has been sufficiently discussed and understood is the important issue raised by the change of title to President and its ensuing effect on the method of selection.

The 1999 referendum proposed a President but it really isn’t necessary. In fact, I believe such a title contains a potential danger: many people will want to directly elect a President, who they may view as a people’s champion, particularly if the government of the day is unpopular. That means they will want to invest the President with more powers, creating a division between that office and the parliament.

This is not how our system of government works and nor should it be. It leads to money politics, as in the United States.

The Australian Governor General / President has limited executive powers in the absence of government and authority on some constitutional matters, particularly an impasse, such as in 1975. Otherwise, the role is largely ceremonial.

The GG’s powers, particularly the ability to dismiss a government require a sound grasp of the Australian Constitution, related constitutional and parliamentary law and the process of government. So that they are qualified, a list of potential candidates should be interviewed and chosen by a committee appointed by parliament. The Prime Minister should then make the final choice, subject to the required majority approval by the joint sitting of parliament.

Most people who may be proposed as a popularly elected President are unqualified for the role. A popularly elected President may also be tempted to test the boundaries of their authority. That, together with the maintenance of parliament’s governing authority is why the GG / President should always be appointed by parliament and never popularly elected.

I recall some idiot proposing Cathy Freeman as a possible President during the 1999 republic debate, to a not insignificant chorus of approval, I might add. These days, it would be Adam Goodes. How would either of them (or a multitude of other symbolic and manifestly unqualified candidates) handle a constitutional crisis such as the blocking of supply? This is why all positions other than MPs are best appointed.

A better strategy is to first decide on the form of the republic and the GG/President’s role and powers, make sure most people understand it, then put the question. The current role of the GG, chosen by a 2/3 majority of a joint sitting of parliament would probably get up, since it would scare very few. We ought to be able to do this by 2020, even though it really is not the most important current issue.

Along those lines, if there was some doubt as to the above referendum passing, a possible tactic would be to hold a referendum repealing Sections 2, 59, 60 and 74, plus rewriting the Queen related sections discussed above. The appeal would be to clean up the Constitution, formally removing all legal power Britain has over Australia. In fact, this was essentially achieved by the Australia Act of 1986, whose legislation causes any of the above sections of the Constitution to be overridden.

Nevertheless, this act can in theory be repealed. A referendum which simply removed or altered the above sections would in effect be a republic by stealth, but would probably succeed. Subsequently, a referendum proposing the minimalist model, which then really would require very minimal changes, would also probably succeed.

I only suggest this strategy as a fall back. More preferable would be to agree on what would almost certainly be the minimalist model, galvanise support from both sides of politics, then put it to a referendum.

Realistically, the only possible republican models are the ones I set out in the numerical example above: the minimalist model, a directly elected President with similar powers to the GG and a directly elected President with significantly increased powers. It is not necessary to waste taxpayers’ money on another Constitutional Convention, a disgraceful profligacy which I believe contributed to the negative mood that aided the No case.

If we truly are a nation sufficiently mature to become a republic, we should be able to openly discuss and debate the above three models. After sufficient time, the government of the day should be able to gauge the electorate’s mood, select the model which would most likely achieve strong elements of bipartisan support, construct enabling legislation, put it to the populace as a referendum and see the republican quest succeed. It’s not a Herculean task, but does require some political analysis and careful tactics.