Australian Head of State as Rights Referee

Currently the constitutional executive position of the Governor-General is a ceremonial position with no real power. The power of the Executive is embedded into the legislative arm of government through the Executive Cabinet which is headed by the Prime Minister. One of the fears of a Head of State being directly elected is that the position may challenge the Prime Minster for the role, responsibilities and power that comes from heading the Executive Cabinet. This is why politicians in government prefer the Head of State being appointed.

Australians should elect the Head of State, through direct election. The principle of equity demands it. A minimal Republic will seek not to disturb the conventions and practices of the Westminster system. Consequently, a role will have to be found for the Head of State that doesn't put the position in direct conflict with the Prime Minister. In Australian Government, there is no-one looking out for my rights. This would be an ideal task for the Head of State to fulfil.

Prime Ministers Fear The Republic

Paul Keating offered the model of a minimal Republic, one in which the Head of State (Governor-General/President) remains ceremonial and is appointed by a Parliamentry majority. While this is a direct translation of the current Governor-General role that removes the Queen of England from the Australian system, it will also in Keating's interest to ensure that his ability to weild power as Prime Minister wasn't affected. John Howard took it a step further to ensure that his power as Prime Minister wasn't challenged and contributed to the scuttling of the Republic referendum.

Currently Peter Costello is standing in line to be the next Prime Minister and like Keating and Howard does not want the Republic to get in their way to weild the abnormal amount of power the Australian system gives to the Prime Minister position. As Greg Barns wrote;

The major pitfall as Costello sees it is that a directly elected president may argue he or she has a rival mandate to a prime minister. But as the Irish system of direct election demonstrates, this is not necessarily the case. Ireland has produced some fine presidents, in particular the past two, Mary Robinson and Mary McAleese, who impressed with their capacity to stand above politics to articulate the values of their nation.

Barns argues that the Australian people understand the Head of State will be ceremonial and will punish at the electoral booth, any Head of State that seeks to expand that role. One of the supreme ironies of Australia Government is that the neutered position of Governor-General is term limited to six years, yet the extremely powerful position of Prime Minister is not. If the Head of State is to have a genuine role in government, that role will have to come from the people. Australian politicians are too fearful of their own power being eroded to ever allow it.

Giving The Head of State a Role

The Australian Constitution is a weak one. The innovation of the US Republic was a constitution that contained formal political rights and protections from government arbitrariness. The US Bill of Rights was added in 1787. The Australian Constitution was ratified in 1901, but was devoid of this advance.As a result Australians have not had anything or anyone looking out for their rights in the Government.

Having a watchdog on rights would be an ideal role for an individual position from direct election. Those seeking election as Head of State would be competing over who could protect your rights the best. This would help defray the parties from having a hold on the position. An individual that is respected in the community for their integrity and reasonableness will have as good a chance as a party candidate.

What Rights and Veto

Having a Head of State that protects rights requires a constitutional Bill of Rights. A statutory Bill of Rights would be quickly dismantled whenever it got inconvenient for Parliament - or it stood in the way of the Prime Minister. The most modern of the Bills of Rights around is New Zealand's. Australia should ask if the document could be renamed to something more inclusive such as the "South Pacific Bill of Rights".

The Head of State would have as their responsibility, to veto any legislation that contradicted the Bill of Rights. Other than the ceremonial functions as Head of State this would be the positions sole governmental responsibility. This would inject the Head of State into government in a meaningful way, without eroding the power of the Prime Minister. This would also serve the function of giving Australians someone in government whose job description is to protect the rights of the people.

cam

monkeymind: Power to dismiss government: What are your thoughts on:

Would or should, the head of state retain the power to remove the government?

And under what conditions?
monkeymind: WIPO: Unsure but not head of executive cabinet.
cam: Not sure: The problems with dismissal and reserve powers is that they appear arbitrary. Kerr and Game\'s decisions are still dicussed today to determine if they were constitutional, or warranted. If Whitlam or Lang hadn\'t of gone quietly there would have been major disturbances. In Lang\'s case, all it would have taken, is for Lang to say to Game, I don\'t recognize your authority and Canberra would have marched on Sydney.

So I don\'t think implied powers and dismissal are healthy for the system. Any powers should be explicit. If there is to be dismissal, then it should only be on the recommendation of parliament with a \"no confidence\" vote preceding it. Another means would via some kind of legal process such as impeachment.

The Head of State should not be able to dismiss an elected government out of hand. The recommendation should have to come from a legal process or parliament itself.

cam
chris: Why a constitutional Bill of Rights?: I like the idea that a head of state should have the responsibility of making sure any laws passed by parliament do not conflict with the rights of any person. But why does this need to be coded into a Bill or Rights? If, as you say, the HoS is competing for our vote by being the best at protecting what we feel are our rights,  does it really need to be coded into a legal document? Will having it written down do more to limit our rights to only what is written down, or prevent our rights from being eroded to less than what is written down?

I guess what I\'m wondering, is would the Bill of Rights become a minimum or maximum set of rights for the HoS to work from? IMHO The danger of a formal Bill of Rights, is that it becomes a maximum set of rights, (ie the HoS must be able to say \"I will not pass this law because it conflicts with this section of the Bill or Rights\") and then becomes outdated as society progresses and expects more rights. The danger of a minimum set (or no formal Bill or Rights at all), is a HoS who oversteps their bounds refusing to pass laws not because they strictly conflict with a persons rights, but because the HoS has managed to (tenuously) justify his or her ideology in terms of rights.
monkeymind: no confidence votes won\'t work in OZ: The party system is too strong. You would never get the required number of Government members tocross the floor. It would be political suicide for them.
cam: Gorton: John Gorton was ousted through a no-confidence vote, half had confidence in him and half didn\'t, he had the deciding vote. Since it looked like the house had lost their confidence, he gave himself a \"no-confidence\" vote as well, and left the Prime Minister position.

So it has happened once. The last twenty years have had third parties being the balance of power in the Senate. There may come a day when a third party (the Nationals?) have the balance of power in the house as well. Who knows.

cam
cam: Explicitly coding the minimum of rights: The Bill of Rights can be an additive constitutional document. If there is need for it, referendums can be held to add new explicit rights to it. Unfortunately it will have to be explicit even if it leaves some rights out. Politicians without an explicit legal limit on their power will claim they rule the earth and the sun.

Without a Bill of Rights to limit the HoS, soon the HoS will be claiming having the ferries (or trains) run on time is a natural right, and usurp the power of the Prime Minister that way. Alternatively without an explicit document on the bare minimum of rights, the PM will ride roughshod over minorities.

The Bill of Rights has to represent the minimum of codified rights that the people want to be protected absolutely. I agree with you though, codifying them gives the appearance that the document contains all an individuals natural and political rights, by the same token even with the protection of such a bill, governments still do not follow it.

But at least an explicit bill of rights gives the judicial a framework to make legal judgements, and in the case of a rights refereee HoS political judgements.

cam
monkeymind: Party Room not Parliment: True Gorton did go but that was withn the party. He was no longer leader but the party was still in power.

So a vote against was not really a vote agaist the party but a leader.

I still do not believe a party would vote itself out of office is this counrty.

George Grey and the Elected Governor General

George Grey was the New Zealand representative at the 1891 Constitutional Convention. His speech for an elected Governor-General at the Convention in Sydney is contained inside. The debate on this issue continued on for a considerable time after Grey's words.

George Grey

I am afraid I shall lose my chance of moving an amendment to this clause if I do not do it at this stage. I move:

That the words "The Queen may, from time to time, appoint," lines 1 and 2, be omitted with a view to the insertion of the words "There shall be."

The intention is that the governor may be elected. I feel that in bringing this subject under the notice of the Convention I am entering upon very delicate and very debatable grounds But I feel that, in point of fact, the future of vast multitudes of persons will depend upon the manner in which this question is dealt with.

This is a question of the interests of nearly 4,000,000 persons at the present moment who look to us; and it appears to me extremely inexpedient that the power of appointing the governor-general to rule so vast a confederacy should be left in the hands of any minister of the day in Great Britain. The terms used are "the Queen shall appoint"; but we all know perfectly well that that means that the minister for the time-being shall appoint such person as he pleases, whilst such appointment might be absolutely obnoxious to her Majesty herself.

The meaning of the thing is that a friend or any other person chosen by the minister may be appointed without the people of this great confederacy being in any way consulted. I understand that the reason usually alleged for that by persons who support the appointment being made by the Queen is that a social appointment is to be made. That is the term usually applied-it is a social question, and not a political question. I contend that the question is twofold, and those two things cannot be separated. The governor has political functions to exercise and he has social functions to exercise, and in either case I hold that a person so appointed is much less fitted to exercise those functions than a governor-general chosen by the people of the country would be.

I do not understand how it can be said that any social ends whatever, or, at all events, of any magnitude, are attained by the appointment of the governor-general by the Crown; but I do hold that social ties and social questions of the strongest possible kind require that the governor-general should be elected by the people of the confederacy. ....

Take the case of a widowed mother, herself well educated, perhaps brought up as a teacher in one of your public schools, and possessing great ability; imagine her with her orphaned children, deprived of a father, night after night teaching those children, with a hope that the highest offices of the state of every kind may be open to them all. Is not that a social question-a social gathering of the highest and noblest kind?

And hundreds, I may say thousands, of such social gatherings would be witnessed every night in this great commonwealth, if all the highest offices of state were filled by election by the people. If you follow it out, you will find that in all social relations of the family-fathers, mothers, children, brothers, sisters-this question is intimately concerned as being something which binds the whole family together for common objects, and opens paths of distinction to every one of them, if they prove themselves great and deserving men.

Why should you say to all these 4,000,000 of people, "No one of you, nor any one of the other millions who are to occupy this country, shall have the slightest chance of ever attaining to an honor of that kind"-that it shall always be open, as it certainly, or almost certainly would be, to distant persons with no claim whatever upon the inhabitants of this country, all of whom would be shut out from so great an opening as that of which I speak?

It is more materially necessary that we should consider this point now, and that we should come to a just decision upon it, because I will show hereafter, as the discussion on the bill proceeds, that in every instance all hope is shut out from the great masses of the colony to succeed to any one of the important posts which under this bill will be open to the people of Australia.

I say that, looking to our duty to our Sovereign, we owe it to her to select the worthiest man we know to represent her here-to be certain that the man so chosen is worthy to represent her; and in no other way than by his being chosen by ourselves from people whom we know can we be certain that the worthiest man will be chosen to represent the Queen within the limits of the great confederacy which we are about to constitute.

Considering the openings that would be given to every inhabitant of Australasia under such a system as I propose, with so many families, as will necessarily do it, directing their every exertion and effort to raise up children worthy of the great opportunities laid open to them, I ask whether this is not to us a greater social question than a few balls and dinners given at Government House, at which none but those in the immediate vicinity can be present?

I ask what comparison is there between these two things-one great and far-reaching, extending to millions, the other a mere sham, as it were, representing what passes in another place, as if one were looking through the wrong end of a telescope at some procession that was going on?
dlatimer: The Pre-Federation Context: George Grey was ahead of his time and certainly this is a fine example of the republican sentiment which existed prior to federation.

I feel obliged to clarify the real point of Grey\'s words. In the 1880\'s the proposal for a Governor-General was based upon similar positions in Canada and to a lesser extent India. These men were the Queen\'s men in the full sense of the word. They were British aristocrats chosen by the Colonial office to keep the empire united. Governors-General were the political link between the superior English parliament and the self-governing polities. They were not the nominal figurehead as is the case today.

Republicans say today \"We want our own Head of State\", whereas Grey was saying \"We want our own Governor-General.\"

Across Australasia, Grey\'s wish has come true to varying degrees. His fears that the Australian government would not even be consulted did not eventuate. In 1926, dominion Prime Ministers earned the right to advice the Queen on the appointment of their Governors-General. The first Australian governor-general was Sir Issac Issacs in 1931. In 1967, Sir Arthur Porritt was the first New Zealand-born Governor General, although he had been living in Britain for 31 years. In 1972 Sir Denis Blundell was the first resident New Zelander in that position. Finally in Papua New Guinea, part of Grey\'s intent was realised. The PNG Governor-General is nominated by parliamentary election.

Had Grey\'s idea of a directly-elected Governor-General been taken up, Australia would have had a very different 1975 constitutional crisis and republicans would not have presented the bi-partisan appointment model for referendum.

On the other hand, the fact that no Commonwealth nation took up Grey\'s suggestion speaks volumes about the real role of the Governor-General post 1926 and the difficulties faced by republicans in creating, in effect, an elected Governor-General.

This is the reason why, in presenting the Honorary President Republican Model ( http://www-persaonl.usyd.edu.au/~dlatimer/honpres ), I kept the office of Governor-General and devised a method of electing our Head of State, a position currently attained through inheritance.  

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