16.09.07
Spectrum of Presidental Powers
A spectrum of presidential powers is often used to compare republican models. The failed bi-partisan appointment model attempted to find a centrist compromise and now plebiscites are to resolve the question of direct-election vs appointment. But using a spectrum of powers hides certain assumptions and it’s only in breaking these assumptions can we envisage Australia’s republican future.
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.
