Article Index

Appointing the Head of State now & in a Politicians’ Republic

There is a fundamental difference between an office holder who is appointed (a Governor-General) and one who is elected (a president).
Appointment, coupled with a sense of duty and obligation to the Crown, acts as a powerful restraint. Election, by whatever means, brings with it supporters, obligations and the notion of a mandate and a power base, and removes the impartiality of a non-political referee. Therefore any candidate for election becomes, by definition, political.

In 1993 the Keating Government's $600,000 Turnbull Report canvassed four options for the selection of a president: appointment by the Prime Minister; appointment by the Parliament; popular election; or appointment by an electoral college. There are fundamental weaknesses in all these options that could be abused by an ambitious president in a time of crisis. A president selected and dismissed by the Prime Minister would lack democratic legitimacy and could be seen, and possibly become, a puppet of the Prime Minister as was seen during the prime ministership of Mrs Ghandi in India. A president elected by the people would have more authority than a Prime Minister elected by MPs as would a president chosen by a two-thirds majority of both Houses of Federal Parliament.

A president must have a fixed term of office e.g. 5 years, 7 years (or for life!!). A Governor-General has no fixed tenure. Thus Australia's Prime Ministers have it made! An inbuilt safeguard. If the Governor-General behaves improperly, or shows political bias, a fax to the Queen advising the 'recall' of the Governor-General and he or she is on his or her way. The monarch will be bound, in turn, to accept the advice of her Australian Prime Minister.
Not so with a President, however elected, with a fixed term. If a President behaved improperly or flouted the conventions, it could take weeks, or even months, and it may not even then be possible to send him or her on their way depending on whatever machinery for the removal of a president (e.g. two-thirds majority of parliament) is prescribed.

Opinion given to prime minister Gough Whitlam by the Commonwealth solicitor-general in 1975; by advice given to Speaker Gordon Scholes by Buckingham Palace in 1975; by advice given to the Queen by prime minister Bob Hawke in 1984; and by descriptions of the governor-general as head of State by former prime ministers Hawke and Keating, former governor-general Bill Hayden, countless newspaper editorials through many years, including in "The Australian", and by leading Australian constitutional scholars such as Brian Galligan, professor of political science, University of Melbourne, in "A Federal Republic: Australia's System of Constitutional Government", published last year'

Sir David Smith (Official Secretary to Governors-General 1973-1990) Lecture delivered during the Australian Senate's Occasional Lecture Series
Canberra 17 November 1995

'Governor-General and Commander-in-Chief Last Update 22.12.95

...... He is the head of state in whom power of the Commonwealth is vested.'

Extract from "The Commonwealth Government Directory — The Official Guide"

December 1995–February 1996 Edition issued by Keating Government

REPUBLICANS ASSERT

The President should be elected by a two-thirds majority of a joint sitting of both Houses of the Commonwealth Parliament. (ARM publication "Towards an Australian republic").

ACM'S RESPONSE

A two-thirds parliamentary-appointed president would mean that the people would not be allowed to elect a Head of State directly despite opinion polls continually showing that at least 80% of Australians would want to elect a President if Australia were ever to become a republic. The politicians would determine who would be president, not the people. Such a method of appointment would immediately imply behind-the-scenes factional and party political deals. It would give a blank cheque to the politicians.

The Keating Government had its own proposal. This was that the Prime Minister would choose and nominate only a single candidate who would be presented to the parliament which would then be obliged to vote without debate. Some dubbed this the 'Russian Model'. If the nominee needed and gained two-thirds of the votes of Federal parliamentarians, such a president would have and could claim a mandate that none in the rest of the executive government could have. In addition it is not impossible that a single party could again hold a two-thirds majority of votes in the parliament. A President obligated for both appointment and protection from dismissal to a particular political party may have great difficulty in making impartial judgement at a time of crisis.

QUOTES FOR THE DAY!

'Irreconcilable opposites are likely to yield chaos'.
Sir Maurice Byers (former Commonwealth Solicitor-General) on the dangers of having a popularly-elected president and parliament.
Article: "Australian Lawyer" October 1995 removable on the advice of the Prime Minister is to be replaced by a president elected for a fixed term and with a method of removal designed to guarantee difficulty for a Government faced with a strong Senate and an ambitious President.'
Sir David Smith (Official Secretary to Governors-General 1973-1990) ACM address "Australia's Heads of State". 29 August 1996

'It is by no means improbable that a President would flout the conventions and use the powers as he or she pleased, either because of a political motive, or because of a wish to assert the importance of the office. In some cases it could be impossible to get the two-thirds majority needed in Parliament to remove a President who behaved improperly or showed political bias. But the fact that the Governor-General may be removed at will provided an additional check against abuse of power. So it is not in any Prime Minister's long term interest and certainly not in the people's best interest to get rid of the two-tier system of Head of State.'
Rt. Hon Sir Harry Gibbs (Chief Justice of the High Court 1981-1987) "The Australian" 21 June 1995

'In the unlikely event that the method of election for the House of Representatives were changed from our highly democratic preferential voting system to the British first-past-the-post system, a two-thirds majority would be quite easy to obtain. Even under our present system, the Fraser Government after the landslide against the Whitlam Government in 1975 was only one seat short of a two-thirds majority'.
Padraic McGuinness (Journalist) "The Age" 9 June 1995
(Note: In this instance the final decision on the choice of a president could well rest with a single Independent member of parliament.)

'Warnings against this type of change were echoed long ago by former Prime Minister Bob Hawke and Governor-General Bill Hayden. A president with a two-thirds majority of both Houses of the Parliament has a stronger power base than a Prime Minister with a bare majority in the House of Representatives. Couple this with the [same] method of removing a president by the same means as appointment, and you will provide a much greater temptation for a president to be what Bob Hawke has described as `a wilful beast'. A Governor-General appointed 'at the Queen's pleasure' and removable on the advice of the Prime Minister is to be replaced by a president elected for a fixed term and with a method of removal designed to guarantee difficulty for a Government faced with a strong Senate and an ambitious President.'
Sir David Smith (Official Secretary to Governors-General 1973-1990) ACM address "Australia's Heads of State". 29 August 1996

'It is by no means improbable that a President would flout the conventions and use the powers as he or she pleased, either because of a political motive, or because of a wish to assert the importance of the office. In some cases it could be impossible to get the two-thirds majority needed in Parliament to remove a President who behaved improperly or showed political bias. But the fact that the Governor-General may be removed at will provided an additional check against abuse of power. So it is not in any Prime Minister's long term interest and certainly not in the people's best interest to get rid of the two-tier system of Head of State.'
Rt. Hon Sir Harry Gibbs (Chief Justice of the High Court 1981-1987) "The Australian" 21 June 1995

'In the unlikely event that the method of election for the House of Representatives were changed from our highly democratic preferential voting system to the British first-past-the-post system, a two-thirds majority would be quite easy to obtain. Even under our present system, the Fraser Government after the landslide against the Whitlam Government in 1975 was only one seat short of a two-thirds majority'.
Padraic McGuinness (Journalist) "The Age" 9 June 1995
(Note: In this instance the final decision on the choice of a president could well rest with a single Independent member of parliament.)

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