Chapter One:
A Republic: The Issues

Rt Hon Sir Harry Gibbs, GCMG, AC, KBE

It is not my intention now to enter into the debate on the question whether Australia should become a republic. I remain unconvinced that the Constitution of Australia would be made more democratic, efficient or just by breaking the existing links with the Crown, and I regard as fanciful the suggestion that under a republic the Head of State would give Australia a sense of unity and would heal the divisions that are said to exist in our society. However, this is not the occasion to press arguments of that kind.

My present purpose is to discuss what issues would have to be decided before our Constitution could be converted to one that would be republican in form as well as in substance.

Much of the commentary in the media, which is not infrequently superficial and biased, suggests that the principal question to be decided would be how the Head of State under a republic should be chosen. That question is only one of many, and it is obvious enough that it cannot sensibly be discussed until it is known what role the Head of State is intended to have, and what powers it is proposed should be given to the holder of the office.

An initial question is whether, under a republic, there should be a Head of State who is appointed or elected to that office alone. An alternative possibility is that the role of the Head of State could be filled by the holder of an existing office, e.g. by the Prime Minister, the Speaker, the President of the Senate or the Chief Justice, or that the functions of the Head of State could be divided between the holders of those offices or some of them.

There would be obvious objections to the adoption of any expedient of that kind. If the powers and functions of a Head of State were given to someone who held another political office, the result would be to enhance the status and influence of that office in a way that might be regarded as unacceptable. If all such powers and functions were conferred on the Chief Justice, the result would be that that office would be given a political character, and if only ceremonial functions were conferred on him the heavy burden of that office would be unduly increased.

The representative and symbolic role which a Head of State is intended to have would be attenuated if there were no separate Head of State. In what follows I shall assume that if a republican Constitution were adopted it would provide for a separate Head of State, although that is a question that would have to be decided.

The question would then arise, what title should be given to the Head of State under a republic? Those advocates for change who wish to minimise the significance of the conversion might prefer to retain the title of Governor-General, but any title which ingenuity or ambition might suggest could be selected. However, President seems a likely choice, and for ease of expression I shall use that name to refer to the Head of State under a republican Constitution.

An important question that would have to be decided at the outset is what type of republican Constitution Australia should have if the conversion were to be made. Existing republican Constitutions throughout the world differ widely in detail. At one end of the range the President has full executive power, and is not responsible to the Legislature for the exercise of that power. That is the position in the United States. However, a President who has extensive executive power may be required to share that power with a Prime Minister (as in France) or may operate under a Constitution which provides for responsible government (as in a number of former British colonies).

At the other end of the range the President exercises little more than ceremonial functions; that is so in Germany and the Republic of Ireland. In between these extremes there are Constitutions under which the Presidency is largely a ceremonial office, but the President still retains some important powers.

For Australia to adopt a Constitution which provided for an executive President on the American model would be to effect a change of the most radical kind, but the influence of American society in Australia is so strong that it is possible that this model might attract some support. On the other hand, a Constitution which allowed the President in practice to exercise only ceremonial functions would be likely to find favour with those who share the opinion which was held by the framers of the German Constitution, that democratic institutions are most likely to be preserved if the position of the Head of State is purely a titular one.

A more pragmatic (if unattractive) reason for adopting a Constitution of that kind is that such a President would lack the ability to check governmental abuses - an argument which may have appealed to Mr De Valera when the Constitution of the Republic of Ireland was under preparation. It is not my purpose now to discuss fully the advantages and disadvantages of these various forms which a republican Constitution might take, but rather to indicate the decisions that would have to be made.

It is nevertheless safe to say that if Australia were to become a republic, many people would wish to see the President placed in a position similar to that now occupied by the Governor-General; that is, in addition to ceremonial and representative functions, the President would have some or all of the powers which can now be exercised by the Governor-General. It becomes necessary then to consider briefly what those powers are, and the difficulties that would arise in attempting to replicate them in a republican Constitution.

Literally construed, the Australian Constitution confers on the Queen and the Governor-General the powers of an absolute Monarch and her representative. There are many sections which are relevant to these questions, and which would have to be amended in one way or another if the Constitution were amended (rather than entirely replaced) to create a republic.

The words of the Constitution, standing alone, allow the Governor-General, at will, to prorogue Parliament, to dissolve the House of Representatives and in some circumstances both Houses, to appoint and dismiss Ministers of State, to refuse assent to a proposed law, and to decline to execute and maintain the laws. If these powers were conferred on a President without qualification, the President would be in the position of a dictator.

The exercise of the powers conferred on the Governor-General by the Constitution is controlled by constitutional conventions, which evolved over the centuries, when in Great Britain, a Monarchy, originally absolute, became a constitutional monarchy, and when democratic institutions developed in Australia. These conventions are so strong that, as a general rule, it would be unthinkable for the Governor-General to exercise the powers of that office except in accordance with the advice of the Ministers.

In some circumstances, however, it would be in accordance with these conventions if the Governor-General exercised certain powers in the exercise of his own discretion, and without or contrary to ministerial advice. In certain circumstances, the Governor-General may decide for himself what person should be appointed as Prime Minister following an election, or on the death or resignation of a former Prime Minister. Of course, this power should be used to appoint only a person who is likely to command the support of a majority of the House of Representatives.

The Governor-General may dismiss a Prime Minister who has lost the confidence of the House of Representatives, or who is attempting to govern without supply, or who persists in a course of serious illegality, at least if the law which has been broken relates to the Constitution or the conduct of Government. In consequence, in some cases the Governor-General may dissolve the House of Representatives, or refuse to dissolve the House of Representatives or both Houses, against the advice of the Prime Minister. The Governor-General may assent to a bill duly passed by the Parliament, although the Prime Minister (perhaps having been in Opposition when the bill was passed) advises him to withhold assent.

These powers, which are commonly called the reserve powers, allow the Governor-General to ensure that the Government is conducted in accordance with proper constitutional principles, and that the ultimate supremacy of the electorate is upheld. This is one of the checks and balances which have given our present Constitution its stability.

These conventions are not rules of law, although they are regarded as binding. Some are clear and settled; others are the subject of controversy. Sometimes the reserve powers have to be exercised in situations of crisis which have not been foreseen and which are not the subject of precedent. The existence of the reserve powers is not merely of theoretical interest; the powers have not infrequently been used in practice.

It could not safely be assumed, if the powers presently vested in the Governor-General were conferred on a President, and no provision was made for the application of the constitutional conventions, that the exercise of the powers would be controlled by these conventions. Since the conventions have developed in relation to the Monarchy and the representatives of the Monarch, they have no necessary application to a republican system.

To ensure that the President would exercise the powers only in accordance with the advice of the Prime Minister or other Ministers, it would be necessary expressly to provide to that effect. However, if this provision were made in every case, no room would be left for the operation of the reserve powers. If, therefore, it were decided that the President could exercise some or all of the reserve powers but no other powers, it would be necessary that express provision should be made to achieve that result.

If this were intended, two further questions would have to be decided. The first is in what way the reserve powers should be defined or described in a republican Constitution.

Three ways are possible. The Constitution could provide that the reserve powers should continue, without saying what they are. They could be described in general terms. They could be codified. The question whether an attempt should be made to codify the reserve powers is one which is likely to provoke a diversity of opinion. Those who argue in favour of codification might claim that it would produce clarity and certainty. On the other hand, it can be strongly argued not only that it would be difficult to agree on what should be codified (particularly in relation to the question whether there should be power to dismiss a Government denied supply by the Senate), but also that codification would rob the powers of their flexibility, and might deprive the President of the power to resolve crises of a kind hitherto unknown.

One suggestion is that the Parliament might define the conventions by a law passed by a two-thirds majority. If Parliament could act in that way, it might decide unduly to restrict the scope of the reserve powers, and in any case legislation of that kind would entail the disadvantage that it would render the powers inflexible.

The second question that would arise is whether the reserve powers should be justiciable, that is, could an exercise of the powers, or a refusal to exercise them, be challenged in the courts? A powerful argument for not rendering them justiciable is that, in an emergency, government might be paralysed by the delay and uncertainty that could result from litigation. On the other hand, if the powers are not made justiciable, there would be no means of enforcing their observance by a President. The fact that they have been observed in practice by Governors-General does not mean that a President would similarly observe them.

Under modern conditions the very existence of the Monarchy depends on the fact that the Monarch will scrupulously observe the conventions of the Constitution, and the Governor-General, as the representative of the Monarch, is obliged to do the same. It does not follow that a President would feel under a similar obligation.

The way in which the reserve powers should be dealt with in a republican Constitution is a question of very considerable difficulty.

When these issues have all been settled, one can conveniently consider the qualifications that should be required for the office of President and the manner of appointment. No doubt the President should be an Australian citizen. Should it be an additional requirement (as it is in some countries, including the United States) that the President should have been native born? Should it be required that he shall have been resident in Australia for a specified period? Should someone having dual nationality be disqualified? Should there be a requirement that the President should be above, or below, a certain age? Many republican Constitutions fix a minimum age - most commonly 35 - but none, so far as I know, a maximum. Should there be other qualifications or disqualifications?

One contentious question is whether former members of Parliament should be ineligible for appointment as President for a certain period, such as five years, after retirement from Parliament. The argument in favour of this view is that every effort should be made to avoid making the appointment a political one; the argument against is that former politicians have in the past filled the office of Governor-General with distinction, and a restriction of this kind might exclude from the office the persons best qualified to fill it.

There are four methods by which a President might be appointed. These are appointment by the Prime Minister, appointment by the Parliament (perhaps by a two-thirds majority of both Houses), appointment by an electoral college and popular election. There are arguments for and against all of these suggested methods.

If it is intended that the President should have real executive power, popular election would obviously be the appropriate method of appointment. If that is not intended, it might be generally agreed that the method of appointment to be selected should be the one least likely to politicise the office.

Certainly, if it were intended that the President should be able to exercise some or all of the reserve powers, it would seem essential that he or she should be expected to act with impartiality, and therefore should not be merely a puppet of a political party. Popular election is the most democratic of the possible methods, but it would clearly have the result that the choice would be made on political grounds, and would be likely to have the further result that the President might appear to have a mandate greater than that of the Prime Minister. Also, some people who would be amongst those who might suitably fill the office of President would not wish to engage in an election campaign.

It has been argued that appointment by a two-thirds majority of both Houses is also a satisfactory democratic method, and that to achieve a two-thirds majority a candidate would need to be supported by more than one party, since only on rare occasions would one political party be likely to control two-thirds of both Houses. Objections to this method are that it would be likely to result in horse trading between political parties in an endeavour to obtain the necessary majority, and that it, like popular election, might appear to give the President a mandate stronger than that of the Prime Minister.

If it were decided to establish an electoral college, it would be necessary to determine how the college should be constituted, e.g., by representatives of the Commonwealth and the States, or by persons holding certain high offices. Appointment by electoral college would not necessarily mean that the selection would be uninfluenced by politics; experience in the United States and India, for example, has shown that in those countries where a President is chosen by an electoral college the choice is made on party political grounds.

Arguments in favour of appointment by the Prime Minister are that that would make the least departure from current practice, and that it would be likely that the Prime Minister would continue the approach that has generally obtained in the appointment of a Governor-General, and would appoint only a person who would appear to be likely to be acceptable to the public generally. Whether that would be so is a matter of pure speculation.

If a President is not to have executive power, and if it is thought desirable to devise some way of ensuring that the person holding that office is one who would command popular respect and act with impartiality, consideration might be given to restricting the right to nominate a candidate for the Presidency. One suggestion is that there should be a nominating committee of eminent persons. This might be a means of controlling the discretion of the Prime Minister if it were decided that he should have the right to appoint the President, but it would not seem appropriate if the President were to be chosen by popular vote or by Parliament.

It would be necessary then to decide whether the President should be appointed for a fixed term and, if so, what that term should be, or whether there should be no period fixed by law for his appointment. Most republican Constitutions provide for a fixed term - of 4, 5 or 6 years. A further matter for decision is whether a President can hold office for more than one term, and if so for how many terms. In the United States and some other republics a President can be re-elected only once.

The question how a President can be dismissed is one of great difficulty and importance. In the rather unlikely event that the President is given executive powers, and is nevertheless made responsible to the Parliament, he or she should lose office if he or she has lost the confidence of the Parliament. If the President is given executive powers but is not made responsible to the Parliament, he or she should be removable only for proved misconduct or incapacity. If the office of the President is mainly ceremonial, but the holder of the office may exercise the reserve powers, the position is not so clear.

Paradoxically, one of the strengths of the present constitutional position arises from the fact that the Queen can dismiss the Governor-General on the advice of the Prime Minister. The fact that the Governor-General is so easily removed means that, if the holder of that office should act with political bias, or with impropriety, or should become mentally or physically unfit, removal could be effected quickly and (in the case of unfitness) without harmful and unnecessary publicity. On the other hand, the fact that it will take a little time to obtain the Queen's concurrence - since it cannot be supposed that Her Majesty would act on a mere telephone call - means that a projected, and possibly impeccable, exercise of the reserve powers could not be frustrated by a Prime Minister effecting an immediate dismissal.

One argument (the logic of which escapes me) is that the method of removal of a President should correspond to the method of appointment. Thus, it is said, if the appointment is made by the Prime Minister, the power of removal should vest in the Prime Minister, and if the appointment is to be made by a two-thirds majority of Parliament, the President should be removable only by Parliament by a similar majority. It is not so clear that it would be appropriate that removal should be made by an electoral college if that were the method of appointment, and it would hardly be sensible, if appointment were made by popular election, to provide that the President could be removed only by referendum.

However the President is to be appointed, there seem to be two possible methods of removal which fall for consideration. One is removal by Parliament on specified grounds. If a parliamentary majority of two-thirds were required, the President would be virtually irremovable, with the consequence that a politically partisan President, who remained in office after a change of government, could greatly impede the proper processes of government. If it were required that grounds should be established judicially, the procedure could be subject to damaging delay. There would be less force in these objections if the removal could be effected by Parliament by a bare majority on grounds which satisfied Parliament itself.

The alternative course suggested is that the Prime Minister should have the power of removal, and that no grounds need to be alleged or proved to justify the exercise of the power. If a power of this kind remained unqualified, the President would have no protection against an arbitrary removal. However, it has been suggested that the President should be given notice - perhaps 48 hours or 14 days - of the intention to remove him or her. This might serve to equate the position of the President to that of the Governor-General so far as removal is concerned. It would be a question however whether dismissal by the Prime Minister would be acceptable if the President had been popularly elected.

In a republican Constitution, provision must be made for the continuance of the office in the event of the death, retirement, absence or removal of the President. Should there be provision for a Vice-President? At present State Governors are sworn in as deputies of the Governor-General, so that the senior Governor is available to act as Governor-General when necessary. A similar provision could be made in respect of the Presidency - that is, of course, if there are to be State Governors, a question to which I shall come.

It would also be desirable to consider a number of questions concerning the incidents of the office of President. Should it be provided in the Constitution that the salary of a President should not be altered, or taxable, during the term of office? The suggestion has been made that Australia might follow the example of a number of other nations and grant the President total or qualified immunity against civil or criminal proceedings during the term of office, or even subsequently. That is another question that is likely to be controversial.

Finally, there remains a question of fundamental importance, namely what should be the result if not all the States are in favour of a change to a republic.

There is a legal controversy as to whether a referendum carried by a majority of electors and in a majority of States would be sufficient to convert Australia to a republic. This question involves, amongst other issues, whether the monarchical character of the Commonwealth is established by the Commonwealth of Australia Act, and whether the monarchical character of the States is established by the Australia Act, and if so, how those Acts can legally be amended.

In considering this question one should however rise above mere legalities. Even if it is legally possible, it would seem unfortunate and impracticable, if not bizarre, that the Commonwealth should become a republic while one or more States remained monarchies. The analogy sought to be drawn with other hybrid republics (such as Malaysia and India as it formerly was) ignores the fact that the historical reasons which contributed to the situation in those other countries have no counterpart in Australia. In addition, a matter of high political principle is involved. The peoples of the Australian colonies agreed to unite in an indissoluble Federal Commonwealth under the Crown. That which was solemnly declared to be indissoluble should not be dissolved without the consent of all the parties to the original compact (that is, all the States). If there is to be a new kind of union - as a republic rather than under the Crown - a referendum to bring about the change should be supported by a majority of electors in every State. The dissent of one State should cause the proposed change to fail.

If Australia were to become a republic, it would have to be decided whether the office of Governor should be continued in each State. Although this would be a matter for each State to decide for itself, the question seems to demand an affirmative answer. The alternative suggestions - that the President might fulfil the role of State Governor as well, or that Lieutenant Governors might be appointed by the President or by the Commonwealth Government - would, if accepted, place the States at the mercy of the Commonwealth.

The history of India provides a warning; there the State Governors, who are appointed by the central Government, have frequently acted to serve the political ends of the central Government, at the expense of the Governments in power in the States. No State should take the risk that the same thing could happen here.

The answers to the questions how a State Governor could be appointed and dismissed, and what should be the powers of the office and the qualifications for holding it, would depend on considerations similar to those which I have already discussed in relation to the office of President.

In all States, except Victoria and Tasmania, the State Constitution could not be amended to get rid of the Monarchy without a referendum. In Victoria a special majority of Parliament would be required. The position in Tasmania is not so clear. Since Australia should not change to a republic unless a referendum is carried in all States, and since, if the change is to be made, all State Constitutions and the Commonwealth Constitution should be amended at the same time, it follows that if a Commonwealth-wide referendum is held, there should be held simultaneously in each State a referendum to seek a corresponding approval to the amendment of the State Constitution. Although not legally necessary in Victoria and Tasmania, this would be a desirable course in those States as well.

I must now conclude. It would be deceptively facile to ask the electors simply whether they favour a republic. Whether a republic would bring about a fundamental change in the way in which Australia is governed would depend on the sort of republican Constitution which was adopted.

The nature of a republic would depend not on slogans and platitudes, but on the detail of the Constitution finally drafted. I have sought to show that there are questions which could critically affect the way in which a republican Constitution might operate. I have not sought to answer all of those questions. I rather think that to the more difficult of those questions there will be as many answers as there are commentators.