The way to a Republic

by Hon Sir Gerard Brennan, A.C., K.B.E.

Presented 26 September 2006

Introduction: A Fair Go for Refugees?

In recent years the polls have shown that most Australians would like to have an Australian Head of State.  We see ourselves as members of an independent polity, responsible for our own affairs and mature enough to sever our constitutional connection with the British Crown.  That connection was essential for the constitutional birth of our nation but it is no longer necessary to its adult status.  Yet, when the proposition that we become a republic was put to referendum, it was defeated.   The monarchist minority enlisted the support of the republicans who favoured the direct election of a President and together they defeated the republicans favouring a Republic headed by a President elected by the Parliament. 

The manner of electing a President was the focus of the referendum debate.  On the one side there was insistence on the democratic right of the people themselves to choose their President; on the other there was the necessity to ensure that a President should not be free to exercise power adversely to the policy of the elected government. 

To those people – especially constitutional lawyers and politicians - who regard responsible government in the Westminster tradition to be essential to our democratic system, the direct election model raised seemingly insuperable difficulties.  A President who is directly elected would have a mandate – a political mandate – arguably superior to any mandate claimed by the parliamentary party forming the government.  He or she would come to office only after a costly and hotly contested campaign in which political parties would field candidates for office who would be naturally in sympathy with their respective backers.  A directly elected President, confident of his or her political mandate, would have little reason to observe the convention which has hitherto bound the Governor-General to act only upon ministerial advice (except when exercising the reserve powers), especially if the advice was coming from a government of a different political persuasion.  Constitutional chaos would result.  Moreover, if accession to the office of President had to be preceded by a nationwide political campaign, candidates of the calibre of some of our best Governors-General would never offer themselves for election.  Indeed it could be surmised that none of Australia’s former Governors-General who had not previously been politicians would have been prepared to stand for office if the office were directly elected. 

On the other hand, parliamentary election of a President was not so constitutionally dangerous.  The proposed ability of the Prime Minister to terminate the appointment of a President would have been a strong incentive for the President to abide by the convention and that would be the safeguard of the Westminster system of responsible government.  But there was considerable opposition to conferring more power on serving politicians to appoint our head of State. 

Irrespective of the method of electing a President, the critical question which must be solved when Australia moves to a republic is how to control the exercise of Presidential power (including the reserve powers) if we are to preserve the system of responsible government – the system which grew out of the struggle for a constitutional monarchy.

When the Bill for the Commonwealth Constitution was debated in the House of Commons the future Lord Haldane said [1] :

“The difference between the Constitution which this bill proposes to set up and the Constitution of the United States is enormous and fundamental.  This bill is permeated through and through with the spirit of the greatest institution which exists in the Empire, … - I mean the institution of responsible government, a government under which the Executive is directly responsible to – nay, is almost the creature of – the Legislature”.

That system now depends chiefly on convention – long established convention but only convention, not law.  Sir Anthony Mason has explained the role of convention in the system of responsible government [2] :

“The principle that in general the Governor defers to, or acts upon, the advice of his Ministers… is a convention, compliance with which enables the doctrine of ministerial responsibility to come into play so that a Minister or Ministers become responsible to Parliament for the decision made by the Governor in Council, thereby contributing to the concept of responsible government. 

Informed by practical experience, former Governor McGarvie observed [3] :

“The basic constitutional convention that binds the Governor-General to exercise powers as advised by Ministers of the elected Government is the essential link between the exercise of those powers and the sovereignty of the people”.

At present, the convention of acting only on ministerial advice is sustained by a number of factors. It is supported by tradition and by contemporary constitutional practice.  It is supported also by the Prime Minister’s ability to secure the removal of the Governor-General by the Queen if the Governor-General should breach the convention.  That is the ultimate pragmatic sanction if a Governor-General should refuse to act on ministerial advice.  A sanction in that form would not be available if the Queen’s role terminated.  If a fixed term President is to be bound to exercise his or her power in accordance with ministerial advice, convention may not always be sufficient to sustain responsible government.  Law, constitutional law, will be needed to ensure the orderly working of government.

Can a constitutional solution be devised in order to ensure that a President’s executive power is exercised as directed by the government which is accountable to the Parliament?  If the exercise of a President’s power can be as effectively confined by law as the Governor-General’s exercise of power is confined by convention, the manner of appointment or dismissal really becomes a second order question.

The convention to act and to act only on ministerial advice can be translated into a simple constitutional text which would govern the day to day exercise of a President’s power.  Leaving aside the problem of the reserve powers for a moment, a constitutional provision that the President must exercise the executive power of the Commonwealth in accordance with ministerial advice and only in accordance with that advice would avoid any risk of constitutional chaos, even if the President were directly elected.  But the need to provide for an exercise of reserve powers would require some qualification of such a provision.  These are powers which must be exercised very sparingly, as 11 November 1975 shows. 

The reserve powers

These are powers exercised without or contrary to ministerial advice.  The existence of reserve powers is essential to safeguard stable government and, in the last analysis, the rule of law.  Reserve powers exist to protect the people and the Constitution against the possibility that a government may pursue an unlawful course of conduct, or refuse to enforce court orders or to ensure that the elements of our parliamentary democracy perform their intended function, especially if they show they are unwilling or unable to do so.  The Constitution would be destroyed if an Executive Government were to act illegally or were to refuse to observe or enforce Court orders.  The Constitution would be imperilled if, for example, a Government which had lost the confidence of the House of Representatives were to refuse to resign or to advise an election.  When any such situation arises, it may be necessary for the Governor-General or a President to act without or even contrary to ministerial advice.  Clearly, the occasions calling for an exercise of power without ministerial advice are very limited.

Various proposals have been advanced by advocates of a republic who recognise the necessity to control an exercise of the reserve powers by a fixed term President.  A majority of the proposals accept the impossibility of defining exhaustively the occasions for the exercise of reserve powers but propose that the existing conventions should govern their exercise.  There are two problems with this solution.  First, if the Constitution were to provide that the existing conventions should have legal force, an exercise of a reserve power would be subject to High Court challenge.  There would be an inevitable delay in mounting the challenge and in the delivery of a judgment.  That delay could be damaging to the national interest.  And there would be difficulty in defining some conventions although the High Court could no doubt develop a body of law as the occasion arises.  Secondly, to prescribe the existing conventions as the governing norms would freeze those conventions and preclude the development of constitutional custom in the future.  The first of these objections is avoided by another proposed solution, namely, to accept the existing conventions as no more than conventions and deny them the force of law.  But that would leave a fixed term President legally free to refuse to follow the conventions – especially if the President had been elected with an individual political mandate.  Some other solution must be found.

So extraordinary is the occasion for an exercise of reserve power that it should be exercised only when it is absolutely necessary to do so to preserve the rule of law and to ensure the effective operation of responsible government under the Constitution.  The test of absolute necessity has been accepted both by Professor Winterton [4] and by former Governor McGarvie [5] .  If the Constitution were to define the purposes which can legitimately be served by an exercise of the reserve powers and were then to limit the occasions of their exercise by a test of absolute necessity to achieve those purposes, a criterion would be established for governing the exercise of such powers whether the President is directly elected or not.  That would safeguard the system of responsible government.  But there would be one further problem to be overcome - litigation.  How could the delay and uncertainty of any litigation brought to test the validity of an exercise of a reserve power be avoided?

Professor Winterton suggests that there might be a Council of State which the President would be bound to consult before exercising a reserve power.  I respectfully agree with the creation of a Council of State, but not simply as a consultative body.  To leave a President free to determine conclusively whether an occasion for exercising the reserve powers has arisen is to risk uncorrectable error and to leave the President exposed to criticism without institutional support.  Moreover, the fact that the President had consulted the Council of State before exercising a reserve power would not protect the exercise from a High Court challenge to its validity.  The delay involved in litigation and in the delivery of a judgment might be quite damaging to the national interest.  It would be preferable to forestall the prospect of a challenge.

There are some powers which can be exercised without ministerial advice and without the likelihood of challenge; for example, the power to dismiss a Prime Minister after the Government is defeated in a general election.  These can be easily defined.  But there are other powers which should be exercised without ministerial advice only when it is absolutely necessary to exercise a power to ensure compliance with the law or the effective operation of responsible government.  The reserve powers limited by this condition would cover the constitutionally defined powers to prorogue the Parliament, to dissolve the House of Representatives, to dissolve both Houses after the Senate has twice failed to pass a proposed law and to appoint and dismiss ministers (ss. 5, 57, 64).  Should the High Court be the arbiter of the absolute necessity to exercise any of those powers without or contrary to ministerial advice?  Surely not, except perhaps in the most extreme cases.  The delay and uncertainty of litigation might frustrate the very purpose of exercising a reserve power.  In such an event, the national interest could be damaged and constitutional chaos might ensue.  But if the people (and the President) cannot have the effective protection of a High Court order, some other mechanism must be found.  A Council of State can provide it. 

It would be for a President to form the opinion that an exercise of any reserve power is absolutely necessary, but a Council of State, immediately available to the President, could be empowered to certify – if it sees fit – that the President’s intended exercise of a reserve power is valid.  The certificate should itself be immune from question in any court. 

Such a certificate would preclude effective curial challenge.  Only if the President had acted without first obtaining such a certificate would it be possible to challenge an exercise of one of those reserve powers in the High Court. 

But how should a Council of State be constituted?  The Council should be small enough to allow speedy consultation in the event of an emergency.  The issues with which the Council would have to deal would be highly political though within a legal context.  I would suggest a Council of three, one of whom has served as a Governor-General or President or as a Governor of a State; the second of whom has served as a Chief Justice or Justice of the High Court or as a Chief Justice of a Superior Federal Court or the Supreme Court of a State; and the third of whom should have served in one or more of the offices just mentioned.  To ensure that there is confidence reposed by the government in the Council of State I would suggest that they should be appointed by the President after consultation with the Prime Minister in the early days of any government – say within three months after the date on which the Parliament is summoned to meet after a general election.

Removal of a President then becomes another question.  There is a clear precedent in the provisions of the Constitution dealing with the removal of Federal Judges.  That could be adopted with appropriate alteration for removal of a President. 

All these provisions can be incorporated into the Constitution.  If incorporated Australia could move safely to a Republic, whatever method of election of a President is desired, confident that a system of responsible government can be maintained.

That is at the Federal level.  But what of the States?

Constitutional arrangements of the States

It is desirable that, if the Constitution were amended to achieve an Australian Republic, the States should move to a corresponding form of government in their constitutional arrangements.  At present State Governors are appointed by the British Monarch on the nomination of the Premiers of the respective States.  Each State could, if it wished, adopt a Constitution reflecting the Constitution proposed for the Commonwealth – that is, a Governor either directly elected or appointed by the Parliament whose powers are controlled by a mechanism similar to that proposed for the control of the President’s powers.  But as an alternative, each of the States which desired it could maintain its existing arrangements by placing the President in precisely the same situation as the British Monarch vis-à-vis the Government of the State.  In other words, State Governors would be appointed by the President on the nomination of the Premier of the State who would have direct access to the President.  The Premier would have the same ability to secure the removal of a Governor as the Premiers respectively enjoy under their current arrangements with the Palace. 

It may be, of course, that one or two States would prefer to maintain a monarchical system.  (If more than two States wished to maintain a monarchical system, any constitutional amendment for the Federation would fail under section 128).  But should a minority of States be permitted to maintain a monarchical system when the majority of Federal electors and a majority of the electors in a majority of the States wish to move to a republican form of government?  I think not.  It would therefore be necessary to provide, that the President should have the same power and authority vis-à-vis the States as the British Monarch has under their existing Constitutions subject to a State’s choosing of some other form of government of solely Australian responsibility.  That can be effected by constitutional amendment, (including a Commonwealth power to amend the Australia Act).

Conclusion

If these arrangements were acceptable, the way would be open to create an Australian Republic, whichever manner of appointment of a President is preferred  There is no need so to divide the community that controversy over the manner of appointing a President frustrates the majority’s aspiration for an Australian Republic.