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 > ... > Rn with R1 + R2
+ ... + Rn = 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 + ... + Rn
– 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”.
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.
What a load of dribble. This Fingerton should have a long hard look at himself if he hasn't already smashed all his mirrors in his house as I'm sure his writing reflects his physical unsightliness.
ReplyDeleteIs this an oblique way of suggesting only a ranga should be allowed as president? Perhaps we should change the flag to be made out of curly, orange wool?
Delete