Republican models

McGarvie | Keating | Bipartisan
Direct Election | Hayden | USA

The McGarvie Model

Nomination
Any Australian citizen may at any time nominate any other Australian citizen to be listed for consideration by the Prime Minister when choosing a President.
Appointment
The citizen chosen by the Prime Minister is to be appointed President by a Constitutional Council in accordance with the Prime Minister’s advice (ie binding request) to do so. The Council can only appoint or dismiss a President on the Prime Minister’s advice and on receiving that advice is bound by a convention backed by the penalty of public dismissal for breach, to do so.

The three members of the Constitutional Council, who can act by majority, are determined automatically by constitutional formula with places going first to former Governors-General or Presidents, with priority to the most recently retired, and unfilled places going, on the same basis in turn to former State Governors, Lieutenant-Governors (or equivalent), judges of the High Court or judges of the Federal Court. The membership, if it ever reaches the Lieutenant-Governors, would be most unlikely to extend beyond them, but the whole line of categories is necessary to ensure that there will always be people from permanent constitutional positions available to constitute the Council. A temporary provision is to operate for thirty years so that if there is no woman in the first two places filled, the third place will go to the woman with the highest priority among the eligible persons.

Dismissal
The President will be dismissed within two weeks of the Prime Minister advising the Constitutional Council to do so.
Powers
The President will have the same range of powers as the Governor-General, but, except for the reserve powers, they can only be exercised on the advice of the Federal Executive Council or a Minister. Otherwise there will be no codification of the constitutional conventions. The conventions which are now binding in practice because backed by an effective practical penalty for breach, remain equally binding because the system and its operation and practical penalties remain the same.
Qualifications
The President must be an Australian citizen but otherwise no qualifications are specified.
Term
As with the Governor-General now, the Constitutional Council will appoint the President at pleasure, without any defined term and legally liable to be dismissed at any time. The President, like a Governor-General, will have the political security of tenure which comes from public knowledge that the President has arranged informally with the Prime Minister to serve for a period, usually five years, and the adverse political reaction against the Prime Minister which would follow the dismissal during that period of a President the community regards as complying with the conventions and meeting expected standards. A President who did not comply with the constitutional conventions and those standards would lose public support and the political security of tenure.

Pros
Beyond the symbolic changes, this model involves the least change to the current arrangements.

Some argue that this model is most likely to ensure that future Governor-Generals are non-political and non-partisan.

This model is likely to get bipartisan political support in the context of a referendum to change the current constitution.

Cons
This model does not satisfy what the opinion polls suggest is the preferred model - a President elected by popular vote.

The Constitutional Council serves no real purpose other than to provide continuity from the current arrangements. Why not do away with the charade and have direct appointment and dismissal of the head of State by the Prime Minister, a simple majority vote in the House of Representatives, or by a two-thirds majority in a joint sitting of Parliament.

The Constitutional Council is likely to be dominated by conservative and elitist interests.

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The Keating Model

Summary description
Replace the Queen and Governor-General with a President appointed and dismissed by a 2/3 majority vote of both houses of Parliament in a joint sitting.
Full description
The President would be appointed for a non-renewable term of office of five years by a two-thirds majority vote in a joint sitting of the Commonwealth Parliament, following the nomination of a single individual by the Prime Minister. The requirement of a two-thirds majority of a joint sitting will mean effectively that there will need to be prior bi-partisan agreement to the nominee.

The President would be an Australian citizen of voting age and may not hold any other remunerated position while in office.

Serving Commonwealth, State and Territory parliamentarians would be excluded from nomination as President, and former Commonwealth, State and Territory parliamentarians would be excluded from nomination until five years have passed since their departure from parliament.

The Commonwealth Parliament would nominate, by a two-thirds majority vote in a joint sitting, the office holder(s) entitled to temporarily perform the duties of President would circumstance or need arise.

The Government supports the appointment of State Governors to act as President when needed, with those eligible being from States no longer using the Queen to appoint their Governors. If no State Governor from a republican State is available, the President of the Senate should act.

The President would have the right to resign. His or her resignation would be passed to the Speaker of the House of Representatives, who would convey it to the Parliament. The resignation of a President would be self-executing, with the Constitution to provide for an acting President to assume office upon the resignation of the President.

The President would be subject to removal by a two-thirds majority vote in a joint sitting of the Commonwealth Parliament, with either House to have the right to initiate the joint sitting by passing a motion supported by a simple majority of its members. However, the President’s removal would not be contingent on a specified set of facts, circumstances or conditions.

The President would perform the ceremonial and representational functions currently performed by the Queen and Governor-General.

The President would exercise the powers currently exercised by the Governor-General under Commonwealth legislation, on the advice of the Federal Executive Council.

The President would exercise all the constitutional powers currently vested in the Governor-General and, except in relation to the reserve powers, be expressly required to act in accordance with Ministerial advice.

The reserve powers currently possessed by the Governor-General would remain with the President, and the Constitution would provide that the constitutional conventions governing the exercise of these powers would continue, but the conventions would not be spelt out. The manner of exercise by the President of the reserve powers would not be open to challenge in the courts.

All references in the Constitution to the Queen, the Crown and the Governor-General would be removed.

The States would be free to decide their own constitutional arrangements.

Pros
Beyond the symbolic changes, this model involves minimal change to the current arrangements.

This model is likely to get bipartisan political support in the context of a referendum to change the current constitution.

This model is highly likely to ensure that Presidential appointments are not political.

Cons

This model does not satisfy what the opinion polls suggest is the preferred model - a President elected by popular vote.

However, it has some of the defects of a popularly elected president. A republican President elected by a 2/3 majority in a joint sitting of Parliament would usually have a greater mandate from Parliament than the Prime Minister.

It is possible to have a situation where Parliament does not agree on a head of State, and as a result no technical source of executive power.

There are some concerns about the dismissal arrangements under this model. But these concerns may be addressed by allowing the Prime Minister or a simple majority in the House of Representatives to dismiss the President.

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The Bipartisan Appointment Model

Nomination Procedure
The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. This process of consultation shall involve the whole community, including:

  • State and Territory parliaments;
  • local government;
  • community organisations; and
  • individual members of the public,

all of whom should be invited to provide nominations.

Parliament shall establish a Committee which will have responsibility for considering the nominations for the position of President. The Committee shall report to the Prime Minister.

While recognising the need for the Committee to be of a workable size, its composition should have a balance between parliamentary (including representatives of all parties with party status in the Commonwealth Parliament) and community membership and take into account so far as practicable considerations of federalism, gender, age and cultural diversity.

The Committee should be mindful of community diversity in the compilation of a short-list of candidates for consideration by the Prime Minister.

This process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution.

The Committee should not disclose any nomination without the consent of the nominee.

Appointment or Election Procedure
Having taken into account the report of the Committee, the Prime Minister shall present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two thirds majority will be required to approve the nomination.
Dismissal Procedure
The President may be removed at any time by a notice in writing signed by the Prime Minister. The President is removed immediately the Prime Minister’s written notice is issued. The Prime Minister’s action must be presented to a meeting of the House of Representatives for the purpose of its ratification within 30 days of the date of removal of the President. In the event the House of Representatives does not ratify the Prime Minister’s action, the President would not be restored to office, but would be eligible for re-appointment. The vote of the House would constitute a vote of no confidence in the Prime Minister.
Definition of Powers
The powers of the President shall be the same as those currently exercised by the Governor General.

To that end, the Convention recommends that the Parliament consider:

  • the non-reserve powers (those exercised in accordance with ministerial advice) being spelled out so far as practicable.
  • a statement that the reserve powers and the conventions relating to their exercise continue to exist.
Qualifications for Office
Australian citizen, qualified to be a member of the House of Representatives (see s. 44 Constitution)
Term of Office
Five years.
Pros

This was the most preferred model at the Constitutional Convention.

Beyond the symbolic changes, this model involves minimal change to the current arrangements.

This model is likely to get bipartisan political support in the context of a referendum to change the current constitution.

This model is highly likely to ensure that Presidential appointments are not political.

Cons

This model does not satisfy what the opinion polls suggest is the preferred model - a President elected by popular vote. However, it does have mechanisms for community input.

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The Direct Election Group Model

Eligibility:
Every Australian citizen qualified to be a member of the Commonwealth Parliament and who has forsworn any allegiance, obedience or adherence to a foreign power shall be eligible for election and to hold office as the Australian Head of State, provided that he or she is not a member of the Commonwealth Parliament or a State or Territory Parliament at the time of nomination nor is a member of a political party during the term of office of Head of State.
Nomination:
Nominations for the office of Australian Head of State may be made by:

  1. Any Australian citizen qualified to be a member of the Commonwealth Parliament;
  2. The Senate or House of Representatives;
  3. Either House of a State or Territory Parliament;
  4. Any Local Government.
Shortlisting:
A joint sitting of the Senate

and House of Representatives shall by at least a two-thirds (2/3) majority choose

no fewer than three (3) candidates from eligible nominees for an election of the

Head of State by the people of Australia.

Election:
The election of the Head of State shall be by the people of Australia voting directly by secret ballot with preferential voting by means of a single transferable vote. Parliament shall make laws to regulate campaign expenditure by and for candidates contesting an election for Head of State and to provide advertising and campaign support through a single body authorised and funded by the Parliament.
Tenure:
The Head of State shall hold office for two (2) terms of the House of Representatives and shall be ineligible for re-election at the next Head of State election.
Dismissal:
The Head of State may be dismissed by an absolute majority of the House of Representatives on the grounds of stated misbehaviour or incapacity or behaviour inconsistent with the terms of his or her appointment.
Casual Vacancy:
A casual vacancy in the office of Head of State shall be filled by the appointment of a caretaker by an absolute majority of the House of Representatives who shall hold office until the election of a new Head of State at the next House of Representatives election.
Non-Reserve Powers:
The existing practice that non-reserve powers should be exercised only in accordance with the advice of the Government shall be stated in the Constitution.
Reserve Powers:
Existing reserve powers shall be partially-codified as generally provided in the Republic Advisory Committee’s 1993 report (see bottom of this page) where the Head of State retains appropriate discretion. However, the Head of State shall not dissolve the House of Representatives by reason of the rejection or failure to pass a money bill unless and until the procedures under section 5A of such report have been followed or unless an absolute majority of the House of Representatives has request such dissolution.
Pros

This model delivers a non-partisan, non-executive, direct elected President. Something that opinion polls suggest the majority of Australian’s want.

Cons

Although the powers are codified, this model tries to address the 1975 Constitutional Crisis. In so doing, it is likely to put voters off side, and therefore fail at a referendum.

This model is more likely to produce a politician as the head of State.

While this model seeks to ensure the head of State won’t be tempted to interfere politically, it does not succeed. In spite of the proposed codification of powers, it leaves a number of other powers in the Constitution at the President’s discretion.

This model is unlikely to receive bipartisan support in a referendum. The Liberal Party would probably oppose this model.

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The Hayden Model

Nomination Procedure
A person who receives the endorsement of one per cent (1%) of voters, by way of petition, enrolled on all Federal Division rolls at the time of nominating should be nominated to stand for direct election.

No voter should be able to endorse more than one candidate for election as the Head of State.

Appointment
The Head of State should be elected by a national poll at which all voters enrolled on Federal Division rolls should be eligible to vote.

Election should be on an optional preferential voting system.

Dismissal
Dismissal should only be for proven misbehaviour or incapacity.

Dismissal for misconduct should be on a resolution moved by the Prime Minister or his or her deputy and supported by an absolute majority of a joint sitting of the Commonwealth Parliament.

Head of State Powers
The powers of the Head of State should be the same as those of the Governor-General.

The Constitution should expressly provide that non-reserve powers should only be exercised on the government’s advice.

There should be a partial codification of the reserve powers in line with the Report of the Republic Advisory Committee recommendation (see pp 102-106).

The exercise of the reserve powers, whether codified or not, should be non-justiciable.

The existing conventions applying to the Governor-General should govern the Head of State. These conventions should be provided for, by way of reference, in the Constitution.

Obsolete powers should be removed.

Qualifications
The Head of State should be an Australian citizen of voting age and enrolled on Federal Division rolls.
Term
The Head of State should be appointed for a term of 4 years.

No head of State can serve more than 2 consecutive terms in office.

Pros
This model has the direct nomination and election feature preferred in the opinion polls.
Cons

While most Australians prefer this model because they believe it takes the decision away from politicians; this model could produce a party political head of State.

This model is unlikely to receive bipartisan support in a referendum. The Liberal Party would probably oppose this model.

The requirement for around 120,000 signatures to nominate is onerous.

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The USA Model

Summary description
Replace the Westminster system of Government with a “separation of powers” and “checks and balances” system of government which has an popularly elected, Executive President who is not a part of the Legislature.
Full description
The President

The electoral college is the body that elects the Presidents and Vice-Presidents of the United States. Each state has the same number of members to the electoral college as it has members of Congress. The electors (as electoral college members are known) are directly elected by popular election. After the electors have been chosen, they meet in their respective state capitals to cast their ballots. In practice the presidential electors are chosen through the political parties. Each party in each state nominates a slate of presidential electors for that state. This means that the voters choose one party’s slate over another’s. The result is that one party wins all or none of a state’s electoral votes.

Impeachment is the first step in the process specified in the Constitution Of The United States for removing the President, Vice-President, or other government official from office upon conviction of “treason, bribery, or other high crimes and misdemeanors.” The House Of Representatives has “the sole power of impeachment,” that is, the power of bringing charges. The Senate has “the sole power to try all impeachments.” A two-thirds vote is required in the Senate for conviction. When the President is to be tried, the Chief Justice of the United States presides.

Separation of powers and of checks and balances

The framers the US Constitution were strongly influenced by the advantages of separation of powers and of checks and balances.

The US Constitution distinctly separates the legislative, executive, and judicial branches of government. (Whereas the Australian Prime Minister is a member of the Legislature or Parliament, the US President cannot be a member of the Legislature). The federal system adds to the checking because power is divided constitutionally between the central government and the states.

Procedural requirements in the US Constitution ensure that even measures popular with the voters cannot be adopted without presumably adequate consideration. The operation of checks and balances in the federal government is spelled out in the Constitution. The two houses of Congress (the US Parliament) legislate separately, and this legislation is subject to presidential veto; however, Congress, by a two thirds vote of each house, can override a presidential veto.

The judicial branch, in determining cases, may declare legislation unconstitutional, but the judiciary itself is subject to executive and legislative checking through the appointment of judges and the passage of legislation governing organization, procedure, and jurisdiction of the courts. There also is a possibility of amendment of the Constitution to reverse judicial determinations.

Other constitutional checks are the possible legislative removal of the president and of judges by impeachment and approval by the Senate of treaties and major presidential appointments.

Pros
A separation of powers style of government would address the current problem of the Parliament being relatively unable to hold the executive government accountable. Under the current arrangements, strong party discipline means that the House of Representatives is not much more than a rubber stamp for the Prime Minister and the Government. The Senate can only hold the Government accountable when the Government does not hold a majority of seats in the Senate.

We know it works (in the United States of America)

Cons

This is the most radical change to the current arrangements. It would require significant changes to the constitution and would deliver a system of government which is vastly different to the current arrangements.

This model is unlikely to receive bipartisan support in a referendum. Indeed, both Liberal and Labor would probably oppose this model.

Most Australians consider the US American system of government inferior to our own.

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Republic Advisory Committee 1993:

(Codification of the powers of a new head of State, pp108-112)

1A Executive Power of the Commonwealth

  1. The executive power of the Commonwealth is vested in the Head of State and is exercisable either directly or through Ministers of State (including the Prime Minister) or persons acting with their authority.
  2. The executive power of the Commonwealth extends to the execution and maintenance of the Constitution, and the laws of the Commonwealth.
  3. The Head of State shall exercise his or her powers and functions in accordance with the advice tendered to him or her by the Federal Executive Council, the Prime Minister or other such Ministers of State as are authorised to do so by the Prime Minister.
  4. Subsection (3) does not apply in relation to the exercise of the powers or functions of the Head of State under sections 2A, 3A(4), 4A, 5A and 6A.

2A Appointment of the Prime Minister

  1. The Head of State shall appoint a person, to be known as the Prime Minister, to be the Head of the Government of the Commonwealth.

  2. Subject to subsection 3A(4), whenever it is necessary for the Head of State to appoint a Prime Minister, the Head of State shall appoint that person who commands the support of the House of Representatives expressed through a resolution of the House, and in the absence of such a resolution, the person who, in his or her judgment, is the most likely to command the support of that House.
  3. The Prime Minister shall not hold office for a longer period than 90 days unless he or she is or becomes a member of the House of Representatives.
  4. The Prime Minister shall be a member of the Federal Executive Council and shall be one of the Ministers of State for the Commonwealth.
  5. The Prime Minister shall hold office, subject to this Constitution, until he or she dies or resigns, or the Head of State terminates his or her appointment.
  6. The exercise of power of the Head of State under subsection (2) shall not be examined in any court.

3A Other Ministers

  1. Ministers of State shall be appointed by the Head of State acting in accordance with the advice of the Prime Minister.
  2. One of the Ministers of State may be denominated Deputy Prime Minister.
  3. Subject to this section, the Head of State shall only remove a Minister from office in accordance with the advice of the Prime Minister.
  4. Upon the death of the Prime Minister, The Head of State shall appoint the Deputy Prime Minister or, if there is no Deputy Prime Minister, the Minister most senior in rank, to be the Prime Minister.
  5. In this section, "Minister" does not include the Prime Minister.

4A Dismissal of the Prime Minister - no confidence resolutions

  1. If the House of Representatives, by an absolute majority of its members, passes a resolution of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister), and the Prime Minister does not forthwith resign from office, the Head of State shall remove him or her from office.
  2. If the House of Representatives passes, other than by an absolute majority of its members, a resolution of confidence in a named person as Prime Minister (other than the person already holding office as Prime Minister), and the Prime Minister does not within three days resign from office or secure a reversal of that resolution, the Head of State shall remove him or her from office.
  3. If the House of Representatives passes a resolution of no confidence in the Prime Minister or the Government by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not, within three days of the passing of that resolution, either resign from office, secure a reversal of that resolution or advise the Head of State to dissolve the Parliament, the Head of State shall remove him or her from the office of Prime Minister.
  4. If the House of Representatives passes a resolution of no-confidence in the Prime Minister or the Government other than by an absolute majority of its members and does not name another person in whom it does have confidence, and the Prime Minister does not, within seven days of the passing of that resolution, either resign from office, secure a reversal of that resolution or advise the Head of State to dissolve the Parliament, the Head of State shall remove him or her from the office of Prime Minister.

5A Dismissal of the Prime Minister - constitutional contravention

  1. If the Head of State believes that the Government of the Commonwealth is contravening a fundamental provision of this Constitution or is not complying with an order of a court, the Head of State may request the Prime Minister to demonstrate that

    1. no contravention is occurring; or
    2. that the Government is complying with the order.

  2. If, after giving the Prime Minister that opportunity, the Head of State still believes that such a contravention or non-compliance is occurring, the Head of State may apply to the High Court for relief.
  3. If, on application by the Head of State, the High Court is satisfied that the Government of the Commonwealth is contravening a provision of this Constitution or not complying with the order of a court, the High Court may grant such relief as it sees fit including a declaration to that effect. The High Court shall not decline to hear such application on the ground that it raises non-justiciable issues.
  4. If on an application by the Head of State, the High Court declares that the Government of the Commonwealth is contravening this Constitution or not complying with the order of a court and the Prime Minister fails to take all reasonable steps to end the contravention or to ensure compliance with the order, the Head of State may dissolve the House of Representatives.
  5. If the Head of State dissolves the House of Representatives under this section, he or she may also terminate the Prime Minister’s commission and appoint as Prime Minister such other person who the Head of State believes will take all reasonable steps to end the contravention and who will maintain the administration of the Commonwealth pending the outcome of the general election following the dissolution referred to in subsection (4) above.
  6. The exercise of the powers of the Head of State under this section shall not be examined by any court.

6A Refusal of dissolution

The Head of State shall not dissolve the House of Representatives-

  1. on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no-confidence, if the House has, by an absolute majority of its members, also expressed confidence in another named person as Prime Minister;
  2. on the advice of a Prime Minister in whom, or in whose Government, the House of Representatives has passed a resolution of no-confidence, if the House has, other than by an absolute majority of its members, also expressed confidence in another named person as Prime Minister, unless the House has reversed the resolution;
  3. while a motion of no confidence in the Prime Minister or the government is pending; or
  4. before the House of Representatives has met after a general election and considered whether it has confidence in the Prime Minister or the Government, unless the House of Representatives has met and is unable to elect a Speaker.

For the purpose of paragraph (c), a "motion of no-confidence" is one which expresses confidence in another named person as Prime Minister and is to come before the House of Representatives within eight days.

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