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© 2005 David Latimer

The Copernican Constitution

Quadrant Monthly June 2005

This article appeared in Quadrant Magazine in June 2005, the first regular publication to present the Honorary President Republican Model and a number of related models under a framework called the Copernican paradigm.

WHEN CAPTAIN COOK from Albion sailed, his primary mission was to observe the Transit of Venus, predicted to be visible over the Pacific on 3rd June 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 evermore 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 corespondents 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 the six 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 model 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 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 nominees who had a recent association with a political party from nomination prior to an election.

    *     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. The 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 sort 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 British 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 patron 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 nine million dollars, however three-quarters of this are 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 replete with staff, offices and transportation can be realistically estimated to cost two million dollars per 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 two 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 two million dollars.

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 resolving 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 under-estimated.

David Latimer is a Sydney computer consultant working on energy management systems. An introduction to the Honorary President can be seen at http://www-personal.usyd.edu.au/~dlatimer/honpres. See also, the Senate Legal and Constitutional Committee website (www.aph.gov.au/senate/committee/legcon_ctte), which has a record of implementations by Emeritus Professor John Power, Dr Peter Carden, Mr David O'Brien and Mr Robert Vogler.

Author's notes

These notes did not appear in the published article