The Republic ... The white-out way to change the Constitution ... Replace "Governor General" with "President" 46 times ... The importance of sticking with the Westminister system, not the Presidential model ... Traps and pitfalls in re-running the quest for a titular and executive Australian head of state ... Lawyer Bruce Donald on the case
The Republic, round-two: avoiding the errors of round-one
Malcolm Turnbull is right - the republic debate will be ignominiously lost again unless, from the very outset, the public mood drives the change. This can only happen if the public understands that only very minimalist constitutional change is needed to achieve an Australian head of state.
There is no mood in Australia, and never has been, for changing our constitution to the completely different presidential system of government, as in the US, where the chief executive of the country who actually runs the government, is directly elected by the people.
That would mean a complete change from our Westminster parliamentary system under which the prime minister leads the government.
So it is vital in the republic debate from the outset not to open the door to such major change. This is precisely what sank the prospect of an Australian head of state last time, in 1999, with the unholy alliance between the monarchists and those supporters of a republic who wanted a direct vote by the electorate, and not parliament, to appoint the head of state.
The cry in 1999 was that there should be no more power given to the politicians. But, as soon as there is a direct election, the person elected as head of state has a popular mandate that immediately creates the basis for conflict with the elected government.
Such a conflict could only be avoided by a detailed rewriting of all the written and unwritten traditions and conventions under which the head of state is to function. That task is a recipe for total confusion, which would be impossible to manage, as a quick look at the elements of our constitution illustrates.
Australians have very little understanding about what makes up our constitution and the fact that most of the key structures are entirely unwritten.
No more curtsies under the minimalist Republican model
Few realise that the written part of our constitution, the Commonwealth of Australia Constitution Act (an Act of the UK Parliament), contains absolutely no reference at all to a prime minister.
Instead, the written Constitution confers all powers on a governor general appointed by the UK Queen or King -powers to call elections and dissolve parliament, to exercise all executive powers of the Commonwealth, to appoint all members of the executive council, establish all government departments and appoint all public servants, to appoint all judges, and to be the commander-in-chief of the armed forces. The list goes on and on with no stated limitation on those powers.
Furthermore, there is absolutely no written reference in the Constitution Act to the fundamental principle of Westminster government under which our whole government works, namely that the majority in the House of Representatives forms the government.
The complex fabric of the constitution and government of Australia, which includes those fundamental unwritten elements, is woven from traditions and conventions, which are nevertheless generally understood and sustained.
There is no public mood to overhaul our entire constitution, written and unwritten. There is just a mood to replace the titular head of state, whom the public understands does not in fact exercise all those powers of the governor general in the Constitution Act, with a person appointed by Australians and who is not in law merely the representative of the legal head of state, the monarch of the UK.
Over 20 years ago on John Doyle's (AKA Roy Slaven) ABC radio program he and I achieved the "five minute white-out pepublic", where we simply took a bottle of white-out to the written Constitution Act and replaced "governor general" with "president" 46 times.
These days it would be even quicker with a 'replace all' change word processing function.
Then, instead of the appointment being in secret as is presently the case, we added a provision for a joint sitting of the federal parliament to approve the appointment, that being the established system under our Constitution to resolve deadlock.
All other traditions and conventions would therefore be left in place to operate as they have always done, (except for the notorious 1975 dismissal, which we can hope will never be repeated).
The new push for the republic is set to drop the nation again into the trap of last time, by first calling for a referendum approving an Australian head of state, but leaving for later the equally crucial issue of the appointment.
Unless from the very outset it is clear that the change is minimal with no change to our system of government, the opponents of an Australian head of state will again kill it stone dead.
Bruce Donald AM is a Sydney lawyer involved with a range of non-profit organisations on local and national environmental issues. His practice, since 1969, has covered environmental, media and commercial law, including a number of indigenous organisations. From 1986-1993 he was chief lawyer for the ABC, chair of the NSW Environmental Defender's Office (1995-2001), a commissioner on the Australian Heritage Commission (1996-1998) and served part-time on the NSW Administrative Decisions Tribunal (1999-2005). He was made a Member of the Order of Australia in 2005 for his public interest legal commitment.