I am glad we are moving towards a Republic, but there is one very weighty issue that was completely overlooked in 1999. That is: if we combine the roles currently exercised by the Queen and the GG into one office holder, we will be changing our constitutional system. Much safer to continue to keep them separate.

Our present constitutional system is that we have a Head of State (currently hereditary but soon, I expect, to be elected, either indirectly or directly) and an appointed vice Head of State who holds important powers, both those explicit in the Constitution and the inferred so-called “Reserve Powers”. These include the power to withhold assent from legislation if it has not been constitutionally passed. It is a power never used but whose existence has worked wonders in keeping the bastards honest. The Reserve Powers include the power, demonstrated by John Kerr, to sack the Prime Minister, appoint a successor of the vice roy’s's own choice and prorogue Parliament, thus precipitating elections. They also include many other powers as yet unused and perhaps unimagined, but which it is good to hold in reserve against unforeseen contingencies. If, for example, a terrorist blast had eliminated the whole Federal Parliament on opening day earlier this year, the Governor General could have appointed an interim government or himself ruled by decree until a new Parliament and government were constituted. No one would have doubted his constitutional power, indeed duty, to do so. No one would have imagined that the Queen should or could do it in his stead.

To give these powers to our Head of State (as was proposed in 1999) would be a drastic change, fraught with danger. It would concentrate real power and ceremonial status in a way to which we are not accustomed. It would tip the scales in favour of Kerr-style delusions of self importance and imprudent political activism by the Head of State. The only conservative model for a post monarchic Australia is one in which we not only continue to have a Head of Sate (only now, he or she would be not hereditary but elected, either directly or indirectly), but also retain an appointed vice Head of State to hold the powers currently vested in the viceroy – (with a strong preference for a bipartisan process of selection, to avoid the sort of political dangers we saw in the Hollingsworth affair).

By all means sack the absent and impotent Queen, but preserve our constitutional separation of powers between the head of State and the vice head of State.

Many attempts to turn Australia into a republic propose removing The Queen from our constitution and transforming the Office of Governor-General into the new head of state. This approach has proved to be quite difficult and controversial trying, as it does, to roll two roles into one.

The Copernican models propose a structure with two heads of state; a President and a Vice-President [Governor-General]. We propose creating a new honorary President to replace The Queen in our Constitution. and we also propose modifying the Office of Governor-General to become the new Vice-President.

The powers of an honorary President in this model would be similar to the powers of The Queen today, and the powers of the Vice-President [Governor-General in a republic] would be similar to [remain as] the powers of the current Governor-General. The Vice-President [Governor-General in a republic] could be appointed by the President on the advice of the Prime Minister in the same manner as the Governor-General is currently appointed by The Queen on the advice of the Prime Minister, by convention.

The method of nomination and election of the President is open to debate, as is the term of office. There are many examples throughout the world of ways to do this.

One option is to have each state, as well as all the territories together, elect a person each to a council with the role of President on a rotation around the council for a term of one year per state and one year for the territories. It could be similar to Australian of the Year, except that the positions are filled by ballot and all the states are of equal weight. Such a council could be elected about every two terms of parliament. Filling the position for President that had fallen vacant through misadventure… would be relatively simple with such a council. This is one method that would dilute the power of an elected head of state so that they could not become a political rival to the Prime Minister. The Reserve Powers would reside with the appointed Vice-President [Governor-General], just as they reside with the Governor-General today.

These Copernican models have many advantages. They preserve the structure in our Constitution which has The Queen as our head of state and the Governor-General as Her Representative. This means that the changes to the Constitution in order to become a republic can be genuinely minimal. Our Constitution draws on Westminster conventions and history and these Copernican models will preserve that vital substratum to our parliamentary democracy and maintain that link to the past. The transition from a constitutional monarchy with The Queen as our head of state, to a republic with an elected Australian as our President would be relatively simple and safe.

Finally, this is a clean and safe direct election model which gives an equal weight to each of the states, and is thus a model that may in all likelihood be carried by a national referendum.

See: http://www.7gs.com/copernican

*******

More recent comments about this approach are at Nominations and elections for an Aussie head of state at Becrux.

***

19/09/2009

There is no hierarchical relationship between the Governor-General and the state Governors and each of these people represent the Queen in our Federation. To avoid confusion, it would be better to retain the office of the Governor-General with the same title in a republic. The strikeout in the text above reflects this change.

Australia and New Zealand currently share a head of state, however, republican debates on both sides of the Tasman have focused entirely upon breaking ties with Britain and not with a nation both geographically closer, more similar to our own, and with which we share a closer relationship. Thus this submission proposes the idea of a trans-Tasman presidency, which would allow Australia and New Zealand to maintain a common head of state whilst maintaining independence as two separate nations, much as they do now.

There are several ways in which a trans-Tasman presidency could function, however, in the case of this proposal the proposed presidency would simply replace the monarchy in Australia and New Zealand, the simplest method of change. Under this system the Governors-General of Australia and New Zealand and the state Governors would maintain their current roles, but would be the representative of the president rather than the British monarch. This would seem the best option for a trans-Tasman presidency as by maintaining Governors-General there would be a permanent representative of the head of state to the Commonwealth and New Zealand governments, allowing a president to freely undertake duties on either side of the Tasman. Within Australia there would also be an advantage to this as it would avoid the changing of the relationship between the Commonwealth and states that could come with a republic, i.e. state governors being representatives of a Commonwealth-appointed president or state governors becoming head of states within their own state.

Appointment of a president would undoutedly be complicated by needing agreement on both sides of the Tasman and the need to assure satisfactory representation of both nations in the presidency. Methods for appointment could include agreement of each appointment by the governments of Australia and the government of New Zealand, a rotating system in which governments take it in turns to appoint the president, and a council selected by the Commonwealth, states, and New Zealand to choose a president. Indeed, there would be many other ways to appoint and, of course, direct election would be a possibility.

In Australian republican debate, it is possible to outline a spectrum of powers within which the power of a proposed President can be compared in various republican models. The bi-partisan appointment model, proposed in the 1999 referendum, was in a moderate position in relation to other models considered by the Australian Republican Movement, the Republican Advisory Committee and the 1998 Constitutional Convention. But was it the best position from which to pass the test of a national referendum? Envisaging a spectrum of powers lures us into making assumptions about how a republican government must operate at its most general level. It is in breaking these assumptions that other republican models can be envisaged, one of which could prove to be Australia’s republican future.

The powers of the existing Governor General, Prime Minister and proposed Presidents must be considered from both their legal and political powers. Many democratic nations give their Heads of State some legal power but little political power. Australia has followed in this tradition and with the exception of a few proponents of an executive presidency, republican models have conferred the Australian President with similar legal powers to the present Governor General.

Model designers who favour appointing the President through parliament try to use the appointment and the dismissal provisions of their model to limit the level of the President’s political power. For example, the appointment provision in the bi-partisan appointment model created a process involving community consultation, a nominations committee, the Prime Minister, the Opposition Leader and finally a joint sitting of Parliament. The effect of this process was said to bind the President to the Parliament and to the people without an election or mandate and give the President a similar level of authority to the present Governor General without politicisation. The dismissal provision was said to ensure the President observed the same constitutional conventions that exist today.

Those supporting direct election will usually mechanise the powers of the President or assign them to another constitutional actor such as the Chief Justice or Speaker of the Lower House. Codification of the conventions and reserve powers is argued by critics to create new opportunities for constitutional crisis and the review of Presidential decisions in the courts. Transferring power to another actor creates conflicts of interest and dilutes the separation of powers doctrine.

Placing various republican models on a spectrum of powers attempts to make linear the distinctions in political powers assumed to be held by the President. A model that allows the Prime Minister to appoint and dismiss the President with no restriction would appear on the conservative side of the spectrum. The officer has no mandate and is subordinate in all but name to the Prime Minister.

A model that allows open nomination and direct election would appear on the progressive side of the spectrum. The electorate is entirely involved in the election of the President, which involves political campaigning. There are ongoing political implications for the government and a possibility that the constitutional arrangements will evolve so that executive political power is shared between the President and Prime Minister.

Between these approaches would be a number of popular republican models. Their proponents are likely to accept the contention that they could be described as conservative, progressive or somewhere between.

The practical strategy for republicans, who are flexible in their support for a model, has been to find the centre then broaden the provisions outwards to accommodate the beliefs of republicans on both the conservative and progressive side of that position. This is why the original ARM preferred model evolved to incorporate a nominations committee (a progressive concept) and prime ministerial dismissal (a conservative concept). These in turn were tweaked so that the nominations committee short-list was not binding on the Prime Minister (conservative) and a prime minister’s dismissal would be ratified by the Parliament within 30 days (progressive).

Although most discussion about models is about whether their provisions are advantageous or disadvantageous, popular or unpopular, the underlying assumption is that support for a model is greatest in the centre. For republicans not committed to a particular model, finding the ideal compromise position was the key to success.

Unfortunately, achieving a compromise does not guarantee majority support and this did not happen either at the convention or the referendum that followed. In fact, the success of the NO campaign has been largely attributed to its appeal to both conservatives and progressives.

So although the strategy may make political common sense, in the case of a republican referendum the centre position is inelegant; a compromise; difficult to grasp. It is the soup spoiled by too many cooks. Perhaps the elector desires a power balance between the President and Prime Minister which is straightforward and/or decisive. It is the extremes of the spectrum that offer these qualities, not the centre which tries to be a bit of everything.

However, if this is correct, the republican model question is ultimately a do-or-die contest between conservatives and progressives, one group proposing minimalist alterations, the other proposing seemingly revolutionary changes. No surprise that republicans are now ready to offer the electorate a plebiscite. The rationale for a plebiscite is that the results will unite republicans behind the most successful model. It is the democratic way to decide the contest.

The problem with the plebiscite solution is that republicans may not agree to support the winning model. We would need to imagine that republicans supporting a parliamentary appointment model or the McGarvie model would, after the plebiscite, realise that their objections to more progressive models were groundless. Richard McGarvie was clear in his view that the status quo is unequivocally better than directly-electing the President. Alternatively, we could imagine that direct-election purists would abandon their deeply held democratic ideals and support an appointment system. As the referendum showed, direct-election supporters would rather work with monarchists than accept parliamentary appointment.

Ultimately, the switch in strategy reveals the paradox at the heart of the existing republican model debate. The constitutional design is expected to establish a presidency with qualities strongly found on both sides of the spectrum of powers. The proposed President is not political, yet has survived an election process and substantial public scrutiny. The President should be a constitutional umpire, yet act only on the advice of the Prime Minister. We would expect that the President have the support of the people yet carry no mandate from the people in carrying out his/her important albeit apolitical responsibilities. The republican paradox appears because no model sitting along the spectrum of powers can satisfy both the progressive and conservative necessities at the same time.

In the many fields of human advancement and science, paradoxes have been faced before. The famous example of Copernicus was able to resolve the paradoxes of planetary movement by challenging the assumption that the Earth was stationary and at the centre of the universe. The spectrum of powers also hides a fundamental assumption. A republican model can and should not exist in one place along the spectrum because there two existing constitutional actors performing the total function and duties of Head of State – the Queen and the Governor-General.

The Governor General already satisfies the conservative requirements for a governmental system. They are nominated by the Prime Minister but are appointed by the Head of State. If we choose not to alter the position of Governor-General, and the same logic applies for the state governors, then the democratic political system embodied by the parliament and the executive council would also remain the same.

By replacing the Queen with a directly-elected Australian President, we satisfy progressive step of establishing a republic under the sovereignty of the people. The function of such a President is equal to McGarvie’s Constitutional Council in terms of its conservative appeal and yet more progressive than either the Gallop or the Hayden direct-election models in terms of its independence from parliament and distance from the Prime Minister.

This Copernican paradigm in republican model design was discovered by at least five Australians independently. It would, in practice, expand the number of apolitical leaders resident in the nation from seven to eight, however there would be just one election. The new Head of State would have no political mandate but would link symbolically all the parliaments (state and federal) which comprise the Australian federation.

The advantages of this approach are numerous – with minimal constitutional change, it can deliver a directly-elected, institutionally-independent Head of State. There is no practical or theoretical disadvantage to our present democracy. The critical relationship and conventions between the Governor General and Prime Minister are unaffected to the degree that no further codification of the powers exercisable by the Governor General is required. The Australian version of the Westminster system of parliamentary government is maintained.

In conclusion, a Copernican model for a republic would be a highly popular in the eyes of the electorate. It could accede to the wishes of those progressive voters who desire a popularly-elected and independent Head of State, without objection from conservative voters concerned that such an election would destabilise our existing system of government.

Since the defeat of the bi-partisan appointment model in 1999, I have been advocating a model for the creation of an Australian Republic in its most basic form retaining the Governor-General and state Governors and simply replacing the Queen with that of an Australian Sovereign with purely ceremonial powers and a codified power to appoint and dismiss governors with limited discretion.

Other republican proposals implicitly merge the roles of the Governor-General and the Head of State, however this is superfluous to the critical step for the achievement of an Australian republic, namely our separation from the English Monarchy. This merging of these roles gives monarchists a platform of defending the constitutional integrity of Australia, while for republicans it creates more difficulties and obstacles than it solves.

The new Sovereignty Model proposes only as much change as is necessary. It preserves the roles of the Governor-General and the State Governors. The established constitutional checks on power between the executive, the Governor-General and the Head of State would maintain the integrity and practicality of the Australian system of government.

Accordingly, a model that changes the least and generates almost no constitutional concerns is best model to put to the Australian people.

Cutting the cord
It is ironic that Australia’s continual stability and our long established independence in virtually all respects bar one means that the seemingly simple task of cutting the umbilical cord to Britain has become an increasingly difficult operation.

The don’t-fix-it brigade are quick to point out that the dangers and risks associated with republicanism could be greater than the benefits of obtaining complete independence from the English Monarchy. Australians are against a more politicised head of state and it is unrealistic to expect political agreement on a codification of the reserve powers.

Under the present constitution it is clear that the Queen is distinct from the Governor-General. Accordingly an independent and hence sovereign republic could be achieved by the simple replacement of the word Queen in the constitution and establishing a Head of State within its provisions.

The desire of Australians to elect their Head of State was firmly established by the defeat in 1999, however nothing has changed for those direct-election models presented at the constitutional convention. The concern about the politicisation of the Head of State remains just as valid.

The good news is that such problems would not arise under a model where the office of Governor-General was retained. As with the State Governors, these representatives of sovereign power would be subject to the same conventions, yet able to exercise reserve powers if absolutely necessary.

The primary remaining constitutional power of the Queen is the appointment and removal of the Governor-General on the advice of the Prime Minister. The codification of these powers would be uncontentious, as the convention involved is well understood. For those wanting maximum assurance that the Prime Minister’s advice would be followed, I propose a bee-sting provision, where the Head of State can only avoid this duty by resigning.

A Sovereign role
The role of the Head of State would be primarily ceremonial and it is anticipated that some of the ceremonial duties currently undertaken by the Governor-General would be transferred to the Head of State. For this reason, I find that the title President, with its connotations of executive power, is not appropriate.

Given that we are replacing the Queen and maintaining our existing systems, it is accurate to use a new title of Sovereign. The title readily implies the intended function, namely a predominantly ceremonial role with limited constitutional functions. Although associated with royalty, it actually refers to independence.

The name is not essential to the model and since deciding upon this name other like-minded republicans have proposed alternatives. Nevertheless, in presenting the Sovereignty Model it emphasises the importance of having a safe direct-election proposal and also the creation of a democratic institution from what was once a closed hereditary system.

Making the best choice
Given the recent revival of interest inspired by the 2004 Senate Inquiry, those dedicated to achieving an Australian Head of State must begin resolving which model is best for Australia’s unique circumstances. We can now do this without being immediately stalled by the direct-election/appointment dilemma which has afflicted the Republican Movement for far too long.

The Sovereignty Model (or one of the variants) provides a recognisable and workable solution that resolves this dilemma. It offers a directly elected Head of State and is the simplest and safest way to achieve an Australian Republic in our lifetime.

The following background speech was given to the Third Republican Gathering in Brisbane on 5th November 2006 by David Latimer, in response to the session on “Should the States play a role in moving towards a republic and if so, what steps can be taken.”

Australia is a federation and the Queen is currently the Head of State for each state as well as the Commonwealth. For all practical purposes, she is represented by a governor, who is appointed by the Queen on the advice of a State Premier.

Each state has its own constitution, and must take steps to break its ties with the Crown, if Australia becomes a republic. A convention in Gladstone, Queensland was held in June 1999 to consider options for the states leading up to a possible referendum YES vote. There were a number of points of general agreement. The states agreed to retain a separate office of state governor for each state. In broad terms it was agreed candidates for governor should be vetted by a nominations committee before one was appointed by the Premier with the agreement of the Opposition Leader.

With respect to the federal constitution, State governors have a role in the election and appointment of Senators and it was felt new mechanisms would be required. Governors also retain dormant commissions to become acting Governors-General and this was a constitutional design issue at the federal and state levels.

As the 1999 referendum failed, it was not possible to implement any of these changes.

The following are points for consideration for the next effort to establish an Australian republic:

• State Constitutions should be consistent with the proposed federal constitution and any new federal legislation.
• Most sections in a state constitution can be altered by enacting ordinary legislation however some sections are entrenched and require a special majority or statewide referendum to alter them. Queensland and Western Australia require a referendum to alter the office of Governor.

With this in mind, the late Richard McGarvie proposed holding a joint state-federal referendum so that all seven constitutions would be altered together or not at all.

Queensland Premier Beattie proposed that state governments could take the lead in appointing governors without the Queen. So far, Queensland has altered the appointment procedure by allowing a parliamentary discussion prior to the appointment of Governor Bryce. It is a very small step, but one more than has been taken elsewhere in Australia.

Further information:

Queensland’s Constitutional Convention, Communique, Jun-1999

Carden, P. The Copernican model and the states, in Copernican Gazette, 2006

Queensland Legislative Assembly Hansard, Appointment of Governor Bryce, 11-Mar-2003, p369-384 (includes detailed information and debate on the appointment process)

McGarvie, M. Democracy: choosing Australia’s republic, 1999, p241-260

Lavarch, M. State Constitutions in a Republican Australia, 18-May-1995

At the Third Republican Gathering in Brisbane on 5th November 2006, leading the session on “National Day of Celebration”, David Latimer provided background and various approaches. The following is based upon his notes and preparation for that session.

For most republicans, the Queen’s Birthday holiday is an ancillary issue. The main objective is establishing a republic and altering the name of a particular public holiday would be a mundane and uncontentious consequence of this important event.

In contrast, for a large number of Australians, the Queen’s Birthday is one aspect of republicanism that could directly affect their lives. The logical consequence of severing links with crown would be also to remove the necessity of celebrating that crown. Some pub talk would go so far to say that republicanism is a plot by the big end of town to deprive workers of a long weekend.

Republicans may rightly reply, “that’s ridiculous”, yet what percentage of citizens are savvy to the political impossibility of dropping a public holiday? This is an issue for the vast numbers of citizens who are not interested in the machinations of politics and although straightforward, the broader republican movement has not provided uniform assurance that there is no risk.

An example of the difference of thinking between the politically experienced and those who are not, I make reference to a Year 6 group who, prior to the 1999 referendum, contributed to Ink – a newspaper’s website for kids. When discussing the advantages and disadvantages, these children focused on tangible issues. The pro-republican students responded to the certain loss of the Queen’s Birthday holiday by offering President’s Day, and perhaps a separate President’s Birthday and Independence Day to sweeten the deal. There were canny politicians in the making in that class!

In presenting this example, I do not imply that some voters are like children, because there was nothing childish in how these students responded to republicanism. In fact, it is those republicans who have skipped over the practical issues who can be accused of naivety.

Having established, the necessity of dealing with this question, let’s us look at how republicans can approach it. I present four basic options:

1. Do nothing. This is a state issue and at the 1998 constitutional convention it was decided that states should independently respond to such issues.
2. Provide basic assurance that this public holiday and long weekend is safe.
3. Facilitate interest and discussion on a replacement public holiday. Republicans should be true to their commitment to popular sovereignty, so we should encourage a decision that comes from the people. This may generate converts to the republican cause from otherwise disinterested groups of voters.
4. Provide a complete solution or a number of solutions. Republicans would propose a new name, date and perhaps purpose for a new public holiday.

Expanding on the last point, it is important to decide if this new public holiday is to be implemented before or only after the establishment of a republic. If government is convinced to alter the holiday prior to a referendum, this would nullify the issue in the minds of all voters.

That said, the Queen’s Birthday Holiday is effectively a day of protest for republicans. It is a day where republican advocates are likely to get some media coverage. We should be aware that if changes are implemented too early, republicans would loose the advantage of being able to highlight the absurdity of an independent Australia formally led by a British Monarch.

It follows that the prudent and most democratic option is to alter his holiday only after Australians have voted in favour of a republic. Nevertheless, republicans should only enter into the referendum debate with a clear commitment from government that this long weekend will be retained in every state, and with a firm concept of the new form of public holiday.

Going beyond a do nothing or basic assurance approach, what are some considerations for a new public holiday for a new republic?

Except for Western Australia, the Queen’s Birthday is held on the second Monday of June. To consider moving the day at all would generate some disquiet. For example, some Victorians associate the day with the start of the ski season. Some cities and rural areas have Show Days which may conflict with the new date. Considerably more opposition would be generated moving it to a completely different time of the year, as this would create a long period without a long weekend in some states. For the same reason, the new holiday wouldn’t be on a fixed date.

A public holiday usually has some meaning. Certain events are associated with the existing Queen’s Birthday holiday, such as the presentation of citizenship, national honours and bravery awards. It follows that the meaning of the new holiday should at least have some association with the events that take place at that time. It would be unfortunate if a future referendum were defeated because of resistance to the new holiday.

The most obvious replacement for a Queen’s birthday would be a President’s Day. This is exactly what the above mentioned students expected, and presumably such logic is apparent to many adults. A President’s Day would automatically be consistent with events currently held on the Queen’s Birthday.

A conservative approach could see a celebration of Commonwealth Day. Under most conceptions of a republic, Australia would retain its ties to the Commonwealth and the Queen as Head of the Commonwealth. The great prudence in advocating such a concept is to nullify another myth associated with republicanism, namely that Australia would loose its Commonwealth membership and could not participate in the Commonwealth Games. The disadvantage is that this day already exists during the month of April, although this obstacle is no greater than celebrating the Queen’s Birthday when it’s not actually her birthday.

Other replacements include Citizenship Day, currently held on September 17, and Democracy Day from the investigations of University law lecturer John Pyke. Looking at United Nations’ calendar, there is nothing outstanding during June or July.

Perhaps the most commonly heard replacement for the Queen’s Birthday is Wattle Day. This would involve moving the long weekend to the start of September. Such a day has some historical background in Australia and it would be appropriate to confer honours on this day as the design of the Order of Australia medallion, medal and ribbon is based upon the yellow Wattle flower. In celebrating a part of Australian flora, we would expect some people organising events in reflection of the natural environment.

Rather than advocate a particular form of celebration, I hope that your interested has been whetted. It is a welcome change from the dry discussions of republicanism and constitutional change.

There should be no difficulty for republicans to provide assurance that public holidays will not be lost in the transition to a republic. That is an action to be undertaken today. Having made the decision, be sure it is included in your policy documents and on your website, if you have one. From this starting point, why not invite your fellow republicans to share their views on this topic. Better yet, find a way to invite Australians in general for their input.

At the appropriate time, the republic contribution should be handed over to state governments to establish a decision-making process prior to a referendum. We should advocate that the process involve the public as far as possible, perhaps to the extent a plebiscite question is asked. Regardless of the process, the decision must be seen as coming from citizens rather than politicians or bureaucrats.

Although strictly ancillary to republicanism, the issue of the Queen’s Birthday holiday allows republicans, in concert with the public, to contribute to Australian culture beyond the desired constitutional changes. By doing our homework, considering all issues thoroughly and putting the public’s mind at ease, we show Australia is ready to tackle the fundamental questions that will shape our nation’s future.

Constitutional reformers around the world have in recent years been concerning themselves with the ways in which integrity in governance may be assured. Indeed, some, like Bruce Ackerman of Yale, have argued for the recognition of a separate ‘integrity branch’ of government [1], and this call has now been echoed in Australia by the Chief Justice of New South Wales, Hon. Jim Spigelman [2]. However, neither of these writers has yet gone on to investigate the best institutional design for this proposed new branch. And those few writers who have, such as some of the participants in the Australian National Integrity Systems Assessment Research Project, have not focused on the ways in which the office of head of state could contribute to the work of integrity assurance [3]. Thus, there is no mention in the Project’s reports to date of a possible gubernatorial role in the coordinating Governance Review Councils that it has recommended for each of the Australian jurisdictions. It has yet to be recognised that concerns for integrity assurance can greatly strengthen the republican movement in Australia.

Any responsible head of state must have a strong interest in assuring the integrity of the system of governance of which s/he is the titular chief. Heads of state will however differ in the ways in which they go about this vital task. Monarchs tend to rely most heavily on the character and sense of ethical responsibility of individuals exercising public authority. In contrast, republican heads of state place greater emphasis on public dimensions, requiring those in authority to be able to demonstrate that they are performing effectively. In republican regimes, those in authority need to be able regularly to satisfy interested publics that integrity is being protected.

For much of its history, Australia was well served by the monarchical approach. ‘The Crown’ acted as a potent symbol of the public interest. In their assumptive worlds, those in authority saw it as their duty to protect that public interest so strongly symbolised by the monarch. And they were for the most part accorded the independence to do so.

As the monarchy began its irreversible decline in Australia, mechanisms of integrity began to proliferate, seemingly in compensation. In all the governments in our federal system, the following relevant institutions are now concerning themselves with governmental integrity:

• Governors
• Cabinet offices
• Executive branch law officers (eg attorneys- general, solicitors-general)
• Public service commissioners
• Court and tribunals (AAT etc)
• Parliamentary committees
• Statutory officers (ombudsmen, auditors- general)
• Independent standing commissions (ICAC, ARC, HREEOC etc)
• Official inquiries (HIH, AWC etc)
• Internal public service units (office of police integrity etc)
• Non-government organisations (IPAA, Transparency International)

So publicly prominent have these mechanisms become that some monarchists are able to claim – with a measure of plausibility – that we are now effectively a republic. However, such a claim assumes a most important consideration, for proliferation of mechanisms does not in itself deliver assurance that integrity is being effectively protected in a coordinated way. In each of our nine governmental jurisdictions, the pattern of mechanisms is distinctively different, and publics have no way of knowing whether any pattern is performing better than any other. To take just one example – consider the gubernatorial role of constitutional counselling that was pioneered by Governor-General Hasluck, and more recently championed by former Victorian Governor McGarvie [4]. We just do not know the extent to which this integrity- relevant role is being performed by our current batch of Governors (although I have had reliable information that in at least one state the Governor does not undertake any constitutional counselling – work that in that State is left to the Cabinet Office).

What would be needed to enable us to be satisfied that a particular pattern was delivering the goods? Surely the best way would be through a high-level collegial body, with a membership similar to that of the Irish Council of State, on which the principal institutions would be represented [5]. (All our governments currently possess executive councils, but these are so dominated by ruling parties it is difficult to see how they could perform the role of integrity assurance). In each Council of State, the Governor would be expected to play a leading role in fostering the adoption of good practice and comprehensive coverage in integrity assurance.

Much of the work of the Council of State would of necessity be of a confidential nature, so how could interested publics be assured that integrity was being protected? Only if one of us – an elected President – was able to tell us that she had satisfied herself that the system was working well. I, for one, would be content with such an assurance; it would certainly be much more than we are receiving at present. The Governors would be the workhorses of the Councils of State – the managing directors, as it were – while the President would, as a member of each Council of State, be the one responsible for certifying to interested publics that the necessary work was being effectively done – a function not unlike that of the chairman of the board.

One of the most marked weaknesses of the modern republican movement has been its excessive legalistic formalism. Few republican reformers have stopped to inquire into the substantive functions that the office of head of state should perform. We can now see that integrity assurance is an important function – arguably the most important – that should be the responsibility of the office of our head of state. Furthermore, an elected President could work on integrity assurance without in any way improperly infringing the rights and responsibilities of the head of government.

While it would be possible for the monarch to discharge this responsibility, at least in the short term, serious commitment to the cause of integrity assurance will ultimately deliver a genuine republic. The critical question is this: Is the coordination of the work of the numerous integrity assurance institutions primarily a non-political, technical task, concerned mainly with fighting corruption? If we answer this question in the affirmative, we shall be satisfied with the Governance Review Councils proposed by the Australian National Integrity Systems Assessment Research Project. If, however, we believe that the assurance of integrity in governance goes well beyond such technical concerns, we shall seek to involve the heads of all three of our branches of government in a new, high-level Council of State whose politics, while transcending the partisan style, will be explicit and republican in nature.

John Power is Professor Emeritus in the Dept of Political Science, University of Melbourne.

Footnotes

[1] Ackerman, Bruce, ‘The New Separation of Powers’, Harvard Law Review, vol. 113, no. 3, January, 2000, pp.633- 729.
[2] Spigelman, Jim, ‘Judicial Review and the Integrity Branch of Government’ Address, paper delivered to the World Jurist Association Congress, Shanghai, September, 2005. (See also http://www.quadrant.org.au/php/article_view.php?article_id=867)
[3] This important project, based on a partnership between Griffith University’s Institute for Ethics, Governance and Law and Transparency International, has focused primarily on integrity as corruption fighting (the central concern of Transparency International). See its report -  Chaos or Coherence:  Strengths, Opportunities and Challenges for Australia’s Integrity Systems, launched last December by the Commonwealth Ombudsman, Prof. John McMillan.
[4] McGarvie, Richard E., Democracy: choosing Australia’s republic, Melbourne University Press, Carlton South, 1999.
[5] The Irish Council of State is composed of the Prime Minister, Deputy Prime Minister, Chief Justice, President of High Court, Presiding Officers of the Two Houses of Parliament, Attorney-General, any former President, Prime Minister or Chief Justice willing to serve and up to seven Presidential nominees. Any Governance Review Council, such as that proposed by the Australian National Integrity Systems Assessment Research Project, could be constituted as a committee of the Council of State.

This is the full version of an article published in Quadrant Magazine in June 2005. The printed Copernican Gazette contains an abridged version.

WHEN CAPTAIN COOK from Albion sailed, his primary mission was to observe the Transit of Venus, predicted to be visible over the Pacific on June 3, 1769. The Endeavour went on to chart the east coast of Australia, successfully claiming half the continent for King George III.

It is an interesting footnote to our history that our journey to nationhood begins with an astronomical expedition. More profoundly, the origin of modern Western society-the scientific revolution and the Age of Reason-begins with the astronomical revolution of Copernicus, who overturned centuries of assumption and doctrine to allow us to observe the universe as it really is, not as we wanted it to be.

It is time to employ this legacy in the polarised republican debate to overturn the presumptions that have created a three-cornered contest between monarchists, minimalist republicans and direct-election advocates. The two republican camps hold to an unconscious understanding that a future republic must involve “the Queen and governor-general replaced by a president”, although a more precise description would be that the Queen would be deleted out of the Constitution and the governor-general would be promoted into a new position of president.

While it may make intuitive sense to follow this formula, attempts to re-engineer the governor-general into a president under Australian conditions must inevitably resolve a range of tangential issues. As the years since the 1998 Constitutional Convention have amply demonstrated, these issues have split the republican movement and made the purported objective of making Australia independent of the Queen ever more distant.

As Copernicus demonstrated conclusively, intuitive sense sometimes fails us. He challenged the age-old assumptions and took a new interpretation of the heavens beyond the imagination of his fellows, who were holding onto a familiar but ultimately incorrect perspective. Likewise, republicans will find a solution when they move their technical focus from the governor-general to the Queen. After all, the Queen is the fulcrum of the whole debate.

At last year’s inquiry into an Australian republic, senators received five independent and detailed submissions with a fundamentally new perspective. They all described how the Queen alone could be replaced by a head of state directly elected by the people.

These correspondents have become the new Copernicans. They have developed a constitutional paradigm, similar to the status quo but resolving the apparently irreconcilable expectations of republican advocates and reflecting the strong apolitical sentiment of the electorate.

IN CONCENTRATING their efforts on the governor-general, republicans often fail to consider the federal system as a whole. Although Australia operates as a federation, executive power in each jurisdiction is officially vested in the one monarchy. On the legislative side, the Queen is a constituent or implicit part of the federal and six state parliaments of Australia.

In orthodox legal theory, plenary authority is derived from the Queen and exercised by the representative governor in each jurisdiction. In view of his or her national role, the governor-general may be one rank higher than the rest, however in terms of our federal compact all the Queen’s representatives are peers of each other. The entire system can now be seen through Copernican eyes, where each jurisdiction is independent but formally part of one system and tied to one central authority.

Given the similarities across jurisdictions, an Australian republican model should work regardless of the polity from which we make our evaluation. In contrast, republicans have left the states to work out their own path. This apparent upholding of states’ rights actually disguises an inability to propose comprehensive solutions that work for the whole federation. Resolving the republican question with some uniformity is not only sensible and practical, it is consistent with the requirement that any constitutional amendment be supported by a majority of states.

So, for the purposes of the rest of this article, a governor also can mean the governor-general. The prime minister and premiers are referred to as heads of government. The shared authority figure is presently the Queen. The republican question is now reduced to a determination of what we would otherwise prefer that authority to be.

COPERNICUS did not postulate a more complex view of the universe but a simpler and more elegant one. Likewise, republicans can sideline their existing paradigm with its direct-election debate, judiciable conventions and reserve power codification difficulties, to consider the advantages of a simpler alternative.

Although the Queen is referenced throughout the federal and state constitutions, each jurisdiction effectively provides her with only one actual duty-the appointment of the representative governor. Being a constitutional monarch, the Queen consistently follows the recommendation of the head of government as required. This single duty could be codified in a single effective and uncontroversial constitutional clause, with the actual appointment made by an Australian head of state instead of an English monarch.

To complete the codification effort, it is useful to formularise the relationship between the governor and the head of state. Again, there is no need to deviate from the status quo. Excepting ceremonial duties, executive authority would be vested in the head of state, but actual exercise of power would be the absolute preserve of the governor. This would allow the relationship between the governor and the head of government, including the exercise of reserve powers, to continue to be guided by unwritten convention.

While other direct-election models remain vexed by the reserve power codification issue, with some Copernican thinking we have found a watertight replacement for not just sections 2 and 61 of the federal Constitution, but the equivalent sections in the various state constitutions. The only remaining task is to establish the head of state as an apolitical representative of the people’s sovereignty.

ALTHOUGH WE HAVE defused the handling of reserve powers, a majority of voters will continue to object to a directly elected president on their fears of politicisation. It is argued correctly that only political parties have the resources to seek out presidential contenders and the experience to promote them successfully. Beneficiaries, to some extent, will be expected to be faithful to the party line.

Political unity may be a prerequisite for good government and effective opposition, but most voters feel that party discipline and the rigour in which elections are fought are incompatible with their expectations of a ceremonial head of state. For a direct-election model to obtain mainstream support it must address this incompatibility with multiple defences against politicisation. To state this in positive terms: it should strive to promote the individual merit of each electoral candidate.

As previously outlined, what puts the Copernican paradigm ahead of the rest is its effective codification strategy. Without real executive power, the head of state cannot implement policy, so there is no mandate, and no party need regard the presidency as either an instrument or an impediment in any political situation. Furthermore, in creating a repatriated position we are starting with a blank slate. We can include a range of anti-politicisation strategies without unwinding the checks and balances of the existing constitution.

I submitted my implementation of a Copernican model to the Senate Republican Inquiry in March 2004. The Honorary President Republican Model included a range of defences against politicisation as follows:

• The head of state was not called President but Honorary President. The title implies a position of honour with no executive power. Some Copernican republicans have other suggestions, while others leave the title as President. At the Queensland Constitutional Convention, a delegate suggested the title Federal President.
• Parliaments, state and federal, could nominate seven former governors in the election of the Honorary President. This provision encourages politicians to give bipartisan support for their nominated candidate. It also raises the bar in terms of election conduct and the choice of candidates.
• Three places in the election would be reserved for candidates nominated through public petition. This puts into practice the principle that any Australian citizen has the potential to attain what would be the highest office of the nation.
• Approval voting is adopted. Used at the United Nations and in many professional associations, this simple system discourages negative campaigning and strategic voting.
• The Honorary President would continue to live in a private residence. Their offices would not be in Canberra and we would not build a presidential palace.
• Constitutional law would restrain the head of state from joining a political party. Ordinary law would prevent the nomination of anyone who had a recent association with a political party.
  The Honorary President may serve for only one term and therefore cannot face an election at the end of that term.

The above is not a list of “nice ideas” but a demonstration of how every aspect of the head of state’s election and tenure can be tailored to minimise political exposure and distance the position from the mechanics of government. It follows that a republican model promoting a president with all or a subset of the existing reserve powers, even if codified, cannot compete with the Copernican paradigm on the key issue of politicisation.

This statement is even applicable to models without direct election. At the 1998 Constitutional Convention, Peter Costello put forward the argument that appointment by two-thirds of the parliament would generate a substantial mandate. It follows that taking out direct election does not, in itself, provide a solid defence against an activist presidency. Minimalist republicans take note.

ALTHOUGH THE QUEEN cannot be dismissed, republican principle places no citizen above the law. In the Honorary President Republican Model, dismissal of the head of state is modelled on the procedures for removing a High Court judge. This involves a crucial but reasoned decision by both houses of parliament in the same session.

Dr Peter Carden has proposed a worthy alternative, where such matters are judged by the High Court. This option has popular appeal and places the state legislature in an equivalent position to the federal.

Unlike the two pages required under the 1999 referendum proposal, a simple statement to be placed in the Miscellaneous chapter of the Constitution is proposed for transitional matters. Given the deliberate similarity between the Queen’s role and the next head of state, the republic could be, in effect, established through succession. This mechanism captures almost all the transitional implications that would otherwise need to be spelt out in an embarrassing fashion in the Constitution’s back pages.

Overall, the Queen is mentioned in twenty sections, mostly in passing terms such as “Queen’s representative” and “Queen’s assent”. The changes outlined affect six of the twenty. Compare this to the sixty-nine changes needed at the previous referendum.

The outline above demonstrates a minimalist approach, however the paradigm can readily incorporate some progressive reform. For example, the Honorary President Republican Model removes the metaphor of personified government. Professor John Power envisages a possible role for the head of state in the indigenous reconciliation process. Inclusion or otherwise of these or other reforms can be assessed according to their particular attributes and is evidence of the paradigm’s flexibility in general terms.

IN THE FINAL Senate Inquiry Report, Road to a Republic, the five independent submissions were reviewed in a section titled “Models with both a President and Governor-General”. The title immediately invokes the issue, as was explained in the report, that “potential for duplication and possible confusion over the roles” may exist. This potential has three sources.

The first follows from the idea that the governor-general should be promoted to president. The rebuke from former Victorian Governor, Richard McGarvie, is that too many republicans have sought to import republican structures from overseas, without considering the local conditions that make government here uniquely Australian.

Of course, the practical complaint made is that the paradigm results in two ceremonial figureheads instead of just one. The truth is that nothing changes. We would have the same nine ceremonial positions-one head of state, seven representative governors and one Northern Territory administrator. Someone also remarked that we would have an extra layer of government, yet again, nothing changes and we would still have the same number of layers whichever way one slices them. These answers underline the similarity between the Copernican paradigm and current arrangements.

The second source of confusion relates to ceremonies and protocol. As the model does not promote the governor-general to the position of president, the possibility exists that the governor-general and head of state could be present in the same room. According to some, the existing protocols preclude such a correspondence, however this is incorrect. Perhaps the issue concerns the geographic distance between Australia and Buckingham Palace, but however much distance was a factor during the days of the empire, it is not relevant to the constitutional arrangements of today. Nevertheless, it does remain a factor in the limited ceremonial role of the Queen, in the Australian context.

In contrast, our governors receive thousands of invitations each year to various events and functions. Most of these must be politely declined, as there are only 365 days in the year. The governors are also patrons to hundreds of community organisations. Seen in this context, introducing an elected and local head of state will provide additional capacity for these community-affirming services.

There is some concern about the Honorary President speaking out. In the mind of the electorate, the greater concern would be an elected head of state who was legally unable to speak out, as is found in the constitution of Ireland.

Again, the advantage in the new paradigm is that there are no reserve powers to back up their words, so it’s questionable whether there would be any significant political content in the Honorary President’s speeches. Under the model, past governors would be more often than not serving as head of state, so the line between comment and activism would be reliably informed by previous experience.

At the Republican Inquiry, senators asked specifically about the relationship between the Honorary President and the governor-general. In response, I anticipated that the ceremonial role would reflect the constitutional role. The governor-general would remain in Canberra performing duties associated with the federal and territory government, in addition to existing executive council, parliamentary, diplomatic and military functions. This would leave, in the broadest terms, the rest of the Australian community waiting to be appreciated, enthused, inspired, listened to and congratulated by the Honorary President.

One of the great opportunities here is renewed public engagement. It is astonishing how one-sided a conversation can get when the fascinating subject of constitutional law is raised. On the other hand, what the leader of the nation should do for and within the community is of interest to every citizen, especially to those in regional Australia where republicanism is otherwise unpopular. In principle, every Australian is qualified to give their answer to the senators’ questions. They may know little about the Constitution, but they do understand the importance of a cohesive and meritocratic society.

Another opportunity follows from the increasing number of appointments to vice-regal office of distinguished women and people from minority groups. At the time of writing, three of the six states have women governors. This suggests that under the Honorary President Republican Model, candidates in the election of the head of state will be highly representative of the Australian community.

The third and final source of confusion relates to costs. The Office of the Governor-General receives an annual budget of approximately $9 million, however three-quarters of this is allocated to building and grounds, domestic staff and the Honours Secretariat. The governor of our largest state has an annual support budget of less than $900,000. Maintaining a non-executive head of state under the Honorary President Model, with staff, offices and transportation, can be realistically estimated to cost $2 million a year.

Under existing direct-election models, the hidden costs for a state in establishing a republic would be in the order of tens of millions of dollars. The annual investment return on the amount for all six states would be greater than $2 million. Furthermore, and this is the clincher, each state would be likely to follow the Commonwealth lead and directly elect their governor. This would result in six additional state elections at national cost of between $26 and $93 million over five years, depending on the type of election. Divide by five and again the amount is much greater than $2 million.

Even assuming that costs of electing the federal head of state are the same under all proposals, the clear conclusion is that the Honorary President Republican Model is the least expensive direct-election model developed to date, with savings of at least 60 per cent over equivalent “elect-the-president” proposals.

THE NEW PARADIGM presented in this article has been demonstrated to resolve the most contentious issues in republican model design. The achievement is due to Copernicus, who has shown us how to find elegant solutions by challenging long-held assumptions and seeking new perspectives.

The paradigm is no mere compromise between direct election and minimalism, although it satisfies the expectations of both republican camps. It is a more accurate interpretation of the Australian system of government that identifies the exact element of that system which ties us to the monarchy-the Queen. It proposes the solution of replacing that element with an elected yet apolitical Australian head of state, symbolic of the sovereignty of the people. It leaves governors in their existing constitutional role, subject to the same conventions and constraints that are the great strengths of Australian democracy.

For the states, the Honorary President Republican Model is an advantageous implementation. The principles of our federation compact are upheld and an electoral candidate is taken from every state, improving the chance of a Tasmanian, West Australian or South Australian becoming head of state. Its defences against politicisation are solid and substantial hidden costs for the states are eliminated.

The Copernican system went on to be further developed, first by Johannes Kepler then by Isaac Newton. Likewise, for a Copernican republic there is still more work to do. Effort is needed on the regulations governing presidential elections and campaign financing. Then, as mentioned previously, there will be the broader community dialogue on our expectations for a ceremonial head of state, the importance of which should not be underestimated.

My aim is to give the Copernican model a legislative framework that is both practical and generally acceptable by the States and the electorate. The model simply requires the replacement of the Queen with an elected President. This is an elegant concept if for no other reason than it would allow the States to continue to share with the Commonwealth the one head of state.

The fact that the Queen is presently head of state of all the States as well as the Commonwealth is a valuable feature of the present system, worthy of preservation but often overlooked, as it was in the model presented in the 1999 referendum. Perhaps the reason was the perceived difficulty in preserving this feature in the context of the candidate republic models then available.

None of them could be said to be sympathetic to State sensitivities. For example a Presidency defined in the Commonwealth Constitution carries overtones of ‘ownership’ of the President by the Commonwealth. This does not go down well where the independence of the States is still an issue.

Each State cherishes what independence it still possesses having been created independently long before the Commonwealth was ever thought of. Opinion among prominent constitutional lawyers as to whether the States would ever overcome such prejudice includes the extreme of ‘never’.

All this presents a challenge that I have been happy to take up. It would be a sad day indeed if the States rejected the Copernican model simply because it was not State-friendly. And it would be a sad day if the nation missed the opportunity to unify all its legal parts under the one true ‘President of Australia’.

It is worthy of note that an outcome of the Queensland Constitutional Convention held at Gladstone in June 1999 was general agreement that the States would keep their Governors upon a change to a republic. So although the Copernican model requires the Governors to be kept, it is in fact merely building on the status quo.

In favour at the Convention was a proposal to mimic the republic model about to be put to the people i.e. the governors were to be turned into mini non-elected presidents. The only thing to be decided was the method of appointing the Governor in the absence of a Queen or President to do the job (on advice of the Premier). But the referendum failed. This of course means that the whole debate about an appropriate republic model needs to be rerun for each State because the issue for a State is virtually the  same as it is now for the Commonwealth.

The Copernican paradigm neatly sidesteps all this by providing a ready replacement for the Queen enabling existing arrangements with the Governor to continue.

In addition the States would stand to gain other advantages. Provided the constitutional changes were appropriately drafted the States would be able to take part in decision-making that affected the Presidency. Certainly they could provide candidates for the election of President and participate in their review. However it has to be accepted that the only place the Presidency can be defined is within the Commonwealth Constitution. So we must find a way to make this acceptable to the States despite the misgivings described above.

One problem is the amendment rule section 128 of the present Constitution. Under this section any individual State can be over-ruled on an issue that may vitally concern it. Such an issue could be its relationship with its own head of state the President.

My solution is to amend the Constitution (by referendum of course) so that a new ‘book’ is added with its own amendment rule. The sections of the new book, entitled ‘the Constitution of the Presidency’ could only be amended in future by a referendum in which a majority of voters in each State agreed.

In the spirit of section 128 of the present constitution this would be more than enough for Commonwealth approval so this amendment rule would effectively give each State and the Commonwealth the power of veto on any proposed measure that it did not want.

On the other hand changes that were unanimously agreed upon could be adopted, even cases where a polity wanted a specific change to its arrangements with the President that did not affect other polities, although admittedly to do this might be arduous, involving, as it would, referenda in States that had no interest in the question being put. All the provisions of the Constitution of the Presidency need to be written in the context of equality between each State and the Commonwealth.

Section 128 would continue to apply to the ‘old book’ but only to the old book, which would in fact be the present Constitution of the Commonwealth with references to the Queen replaced by references to the President.

This should hopefully provide a degree of certainty to the Presidency that would satisfy the States. But it also means that the powers of the Presidency once defined would be difficult to alter. The powers therefore need to be defined unambiguously in the first place. I suggest that the President’s powers and functions be simply defined as those enjoyed by the Queen just prior to the date on which the amended constitution becomes law.

A very important consideration is that a Copernican model should be so constructed that the States would be released from any immediate obligation to share the Presidency should the model be adopted by referendum. Each State must be given the option of dealing with the Republic as it determines and without pressure to meet a dead line. A State may decide to continue with the monarchy or become a republic independent of the Constitution of the Presidency. Thus, while the Copernican amendment to the present Constitution would provide a defined Presidency, there ready and waiting, it would not assume that it would be accepted. Each State could take it or leave it. Other provisions would take care of matters arising from a late entry.

Because the Presidency is to be shared among the participating polities it is possible that disputes among these polities may arise at some time. Such disputes are currently settled by the High Court and it is proposed that this practice should continue. The High Court may also be relied upon to deal with misdemeanours of the President.

In summary then the Copernican concept offers advantages to Australia as a whole and to the States. To Australia it offers real unity of all polities under one truly Australian President. It offers maximum propensity to win approval in a referendum because it proposes essentially no practical change to the existing system, maintains tried and proved safeguards and gives sovereignty to the people. For the States it respects their rights and independence, allows participation in the one all-embracing Republic and provides easy entry at minimum cost.