The Case for Constitutional Governors

A short essay detailing the conceptual basis for an Australia independent from the House of Windsor and the British Constitution yet retaining all that is best in the practice of a constitutional monarchy.

Abstract

In the foreseeable future Australia will seek to cut its formal constitutional ties with the United Kingdom. It is generally accepted that some form of an Australian republic will emerge as successor to our present constitutional arrangements. This essay suggests an alternative to a republic per se whilst enshrining the Federalist principles deliberated and agreed upon by our Founding Fathers. This alternative will require a minimum rewriting of our present constitution; it will retain our political heritage whilst projecting Australia as a completely independent and distinct polity and it will, through the introduction of constitutional governors, appointed by the people, re-enfranchise the Australian people by further keeping government to account.

This essay has been prepared as a discussion paper for all interested parties in the interests of Australia’s constitutional future. Its contents may be used and disseminated freely. Some acknowledgement of source would be appreciated but not required.

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It is inevitable that Australia will, in the foreseeable future, seek to cut its formal constitutional ties from the United Kingdom.

Most people automatically assume that an Australian republic will emerge as the successor to our present constitutional arrangements as a constitutional monarchy. Indeed, those who actively seek to end our arrangement with the United Kingdom gather under the broad banner of the Australian Republican Movement. This organisation is the chief exponent for constitutional change.

Putative republicans are arrayed against an equally formidable force in favour of the status quo, Australians for a Constitutional Monarchy. And thus the argument to and fro.

The recent visit of the popular second heir to the throne, Prince William and his glamorous wife Kate, has indubitably furthered the cause of the status quo, pro tem. This celebrity status visit doubtless said as much about contemporary society’s fixation on celebrity politics and social casting. Nonetheless, the call for a truly ‘independent’ Australia will broaden over the years as the realities of British ties diminish.

It is an incontrovertible fact however that Australia does have tangible historical and cultural ties to the United Kingdom – it was after all, a foundation British settlement and for its first century, at least, considered itself to be completely British. Australia’s cultural, economic, political and military history has, until certainly 1973 when Britain joined the Common Market, been ineluctably linked to the United Kingdom. One cannot easily dismiss 185 years of a county’s 226 year history. Australia’s British heritage is an inseparable component of its cultural and political milieu.

It is little wonder therefore that so many of the population hold strong and nostalgic ties to that which is familiar. Others, for more pragmatic reasons, are reluctant to abandon a political system that not only works, but has served the country well, for so long. Yet others have an in-built resistance to the idea and international experience of a ‘republic’.

Republicanism is a notional and intrinsically foreign abstract to Australia’s experience. It raises questions as to what sort of republic - what constitutional model should we adopt? Many republican models around the world are incompatible with Australia’s cultural and political psyche – how American do we wish to become? Do we really appreciate the French or Italian models? Do we really wish to copy the Indian, Singaporean or Israeli models? What is to be the role of the president vis-a-vis our familiar tradition of Prime Minister and Cabinet? And, the ultimate question - why can’t we have our own distinct type of independent polity without copying anyone else?

This is where my proposal sits – fairly and squarely between the throwing out all of our political traditions and establishing our own, distinctive independent Australian Commonwealth.  

I have outlined the concept of a Constitutional Governorship in my book of collected essays The Smiling Autarch in 2013. I append this essay below:

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Despite the foregoing, there are some who would argue that, its manifest flaws notwithstanding, democracy is probably still the most robust form of government. As Sir Winston Churchill observed:

"No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time."[1]

And again, American theologian and professor of ethics, Reinhold Niebuhr, succinctly observed:

"Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary."[2]

Putting aside the merits or otherwise of having the House of Windsor as head of the Australian people, there is a strong argument to suggest that the principles of a constitutional monarchy are by far the most democratic, independent and efficacious way of governing a country.

This fact has been recognised by many former British colonies and other democratic countries of the world – India, Israel, Malaysia and Singapore are disparate countries and cultures that immediately spring to mind. Malaysia has a constitutional monarch whilst the other three have Presidents appointed as Head of States. The Prime Minister and Cabinet answerable both to Parliament and to the Head of State.  

Unlike a directly elected and executive president, the American model serves as an obvious example; the Head of State transcends party politics. He or she serves as the legitimising agency for the actions of government and as the focal point for national feeling. This is not to say that such a head of state is purely ceremonial, they enjoy some residual powers, varying from polity to polity.

The ancient Scandinavian monarchies serve as sound examples of stable and popular government. After the excesses of Franco, Spain decided to return to a monarchical system of government in what appear to be a successful endeavour to remove the head of state from the volatility of popular politics.  

To this end, I propose a somewhat different democratic model for Australia. And at this point I hasten to distinguish the difference between being a royalist and a monarchist. I am not a royalist in that I am a supporter of the House of Windsor. Nor do I take much interest in the goings on of that family. I am however a monarchist in that I believe in the principles and advantages of a constitutional monarchy. My model therefore draws upon the best principles of a constitutional monarchy; it is a direct reflection of our political heritage and effectively re-enfranchises the people. 

In essence, my model requires every state of the Commonwealth to amend its constitution by replacing all reference to the Queen of England and so forth by the ‘Governor’ and ‘Governor-General of Australia’.

The Governors of each state are to be nominated by a Select Committee of Parliament after calling for and receiving nominations from the public. The final nomination is to be confirmed by a sitting of both houses of Parliament at which the nominee should receive sixty percent of the vote. In the case of unicameral legislatures the nominee should receive seventy percent of the vote of the house. The Governors are to be appointed by State Parliament for a period of six years.

In appointing the Governor-General, Australia might take the lead from the constitutional monarchical arrangements in place in Malaya since 1957, namely, on a rotating basis between the State Governors.

Thus each State will regularly have a Governor General appointed from their ranks. The Governor-General would fulfil a three-year term. In his/her absence as Governor General, the State will have a Lieutenant Governor.

The Governors will meet with their Governor-General on a quarterly basis to discuss constitutional matters. Such meetings will be known as the Governors-in-Council.  

Suitably qualified and experienced constitutional advisers and legal support will appropriately support each office of Governor and, of course, the Governor-General.

Each Governor and the Governor-General will hold certain reserve powers pertaining to the calling of elections. Acting on the basis that the people are the highest court in the land, if the Governor considers that the government has demonstrably lost the support of the people; is acting against the expressed interests of the people and beyond its mandate, and that there is no check upon its actions namely, that there is no upper house or that the government holds the majority in both houses, the Governor, after consultation with the Governors-in-Council, may, on behalf of the people, return the government to the people. 

Similarly may the Governor-General, with the approbation of the Governors-in-Council, return the federal government to the people.

The Governors and Governor-General may receive petitions and citizens’ initiated referendum from the people, which they are duty bound to send to Parliament for consideration.

The Governor-General may be removed by a sitting of the Governors-in-Council ratified by a joint sitting of both houses of Federal Parliament.

State Governors may be removed by a joint sitting of State Parliament at which the motion to dismiss must receive seventy percent support of all members.

This distinctly Australian theoretical construct for a Head of State requires minimal changes to the country’s constitutional framework; it reflects the constitutional heritage of Australia and includes the advantages of a constitutional monarchy without having a monarch.

Moreover, the model has the advantage of moving beyond the republican debate and the tendentious argument about the type of republic, if any, best suited to Australia.

This country is already known as the Commonwealth of Australia. The constitutional governorship model places the Australian Head of State several steps removed from prime minister and cabinet in a manner intrinsic to the Westminster system. Moreover it enhances the federal constitutional arrangements put in place by our founding fathers that have served Australia well. In doing so, it strengthens the federal nature of the Australian polity and gives practical and effective expression to the notion of check and balances on government. And finally, and most importantly, thereby do the people hold the government to effective account.[3]

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Thus, my previously published essay. It was designed and remains a conceptual framework, an idea to be fleshed out. I do not presume to be a constitutional lawyer, but an historian. However, I do not need to remind you that history is as important a consideration as law in preparing the foundations of political society.

In reflection I can certainly imagine a problem in getting the six states to simultaneously alter their constitutions, but this is surely a matter that, through consensus could be overcome. My model posits the state governors in council so the States constitutions would not be a great obstacle in that they could alter their individual constitutions at leisure. There is also the question of the Territories not having any input. Again, a matter for debate and consensus.  

I might also suggest that an alternative to the appointment of the Governor General is that he or she be elected by the Council of Governors for the time of office and their replacement should be permanent. This means that when the Governor General has completed his or her term they go out to pasture as they do now. All such matters being grist for debate. 

My suggested model retains the federal ideals of our Founding Fathers; it provides the best of the republican and constitutional monarchist models of government; it retains obvious links to our political and historical heritage; it delivers accountability to the levels of state and federal government and it gives the people a greater say over who governs them.  Moreover, it will be a model unique amongst the world. 

Of particular importance however is the fact of the Governor-General being appointed by the Governors-in-Council removes the influence of the prime minister and cabinet in the  appointment and the perception of jobs for the boys and girls. It would therefore give the office a new and credible image of independence.

Given the previous uncertainties and partisanship associated with the composition of the last House of Representatives and the undemocratic nature of the current Senate, the time is surely ripe for a comprehensive review of this country’s political processes.

It is perhaps moot to convene, in the spirit of our Founding Fathers, a fully-fledged, formal all party constitutional conference to debate the constitutional future of this country. Such bipartisan leadership might restore some trust back into politics and the public life of this country.

In this context I humbly offer my model of a Constitutional Governorship. I trust it might in some way resonate.

John Coe [PhD M Litt BA]

[1] (1947 Speech).

[2] (The Children of Light and the Children of Darkness.)  

[3] Coe, John J. The Smiling Autarch [Reflections on Ethics: Essays in support of an Australian Moral Consensus.].  Published by the Author. www.writersandwbooks.com Sydney. 2013. Pp 75-78.