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Fiducial Governance: An Australian republic for the new millennium

2. The current Australian regime

a) Strengths and weaknesses of the current regime

The most recent comprehensive assessment of the current Australian regime, Australia: The state of democracy, lists no fewer than 50 strengths and 58 weaknesses, although it does not go on to recommend explicit reform strategies for improvement (Sawer et al. 2009). It does, however, supply us with a useful checklist for setting a context for the discussion of six of our eight sections below.[1]

Perusal of the more than 100 items of assessment that follow shows that Australia: The state of democracy follows a fairly standard left-liberal line, being particularly concerned with the effects of anti-terrorism laws and with the inequitable treatments still meted out to Indigenous Australians and many asylum-seekers. This inclination should be constantly borne in mind as we move through the categories of the constrained parliamentarianism framework. (As the purpose of Australia: The state of democracy differs from that of this monograph, some of the item ‘placements’ will be fairly rough and ready; despite this, they perform the service required of them, for they provide a good context for evaluation.)

b) Parliamentary democracy

Table 2.1 Parliamentary democracy

Context set by Sawer et al. (2009:24, 126, 146, 171, 230, 245, 276, 293)

Strengths

Weaknesses

An immigration policy oriented towards permanent residence and the granting of citizenship

Many of the social rights generally associated with citizenship available to permanent residents

No national representative body to speak for Indigenous Australians

Dual citizens precluded from membership of the Australian Parliament

Access and equity policies in all jurisdictions to address the needs of those from culturally and linguistically diverse backgrounds

Tradition of non-partisan electoral administration

Compulsory voting ensuring high turnout

Some element of proportional representation in most jurisdictions

Elections usually produce decisive results with clear winners and losers

Attempts to improve internal party democracy

Despite globalisation, government retains control over key areas of policy

Systematic scrutiny of government expenditure

Strong bicameralism in most jurisdictions

Independent, publicly funded national broadcasters

Generally free news media

Greater uniformity in defamation laws

Increased self-scrutiny by media industry

High level of participation in voluntary associations

Presence of women in public office increasing

New approaches to public consultation

Accessibility of elected representatives

High level of satisfaction with government services

Local government acts now require community consultation

Increased attention to integrity systems

Recognition of local government in most state constitutions

History of support for international human rights initiatives

Support for democratic capacity building in the region

Proactive in providing market access for poorer countries

Parliamentary oversight of treaty making

Increased stress on assimilation to ‘national values’

Elections sometimes won with minority of votes

A ‘shrinking’ electoral roll

Parliamentary under-representation of women, immigrants and Indigenous Australians

Public funding has supplemented rather than replaced private funding

Inadequate disclosure regime for political donations

Low party membership

Executive dominance of parliament

Limited parliamentary role in authorising public expenditure

Relatively weak freedom-of-information culture and laws

Lack of accountability of ministerial advisers

Lack of transparency in government appointments to boards

High concentration of media ownership

Increased political and financial pressures on public broadcasting

Tighter restrictions on reporting due to anti-terrorism laws

Prospect of prison for journalists who protect sources

Weak political representation of new immigrant groups

Muting of non-governmental organisation advocacy through conditions attached to public funding

Lack of independent regulator for charities

Declining levels of trust in government

Unmet need for many services

Slow uptake of deliberative processes

Lack of recognition of local government in the Australian Constitution

Continued existence of property votes in most jurisdictions

Financial weakness of local government

‘Efficiency’ reforms, including amalgamations, at expense of democracy

Variable relationship with the United Nations over human rights

Little community input into objectives for treaty negotiation

Skewing of foreign aid program to fit strategic objectives

Failure to meet UN target for volume of overseas aid

The exhaustive Sawer checklist in Table 2.1—with its 27 ‘strengths’ and 32 ‘weaknesses’—enables us to make a balanced judgment on the current condition of Australian parliamentary democracy. The most prominent theme that emerges from a reading of these lists is the way in which the formal provisions of a constitution that is now more than a century old are still so heavily influential. And it has been in those areas that are more difficult to shape through formal constitutional provision that weaknesses have become most apparent. So, if we are to move towards fiducial governance, we need to compensate for one major shift that has occurred during the nation’s existence, although it has been ignored by Sawer—the weakening of the influence of the Crown—an influence that was all too prominent when the constitution was being drafted. And as we move to specify the reforms needed to compensate for this weakening, we can learn some important lessons from one set of citizens who were extremely poorly recognised in that same drafting process of the 1890s: Indigenous Australians.

As we have already noted above (in Section 1k), the recent report Our Future in Our Hands provides sound guidance not only on the question of how Indigenous representatives might best be located in the proposed new bodies, but on the broader questions concerned with the selection of the most appropriate processes that should be established in the development of the councils of state themselves.

c) Federal structure[2]

Table 2.2 Federal structure

Context set by Sawer et al. (2009:310)

Strengths

Weaknesses

Scope for policy innovation and experimentation

More opportunities for political participation

Potential for regional responsiveness and diversity

Fiscal equalisation to ensure services of equal standard

Limited scope in intergovernmental decision making for parliamentary deliberation or community consultation

Lack of transparency in intergovernmental decision making

Accountability issues arising from blame-shifting and confusion

The most recent review of the condition of Australian federalism (Fenna 2009:155) concluded that there was little compelling reason to support the continuation of the system, for there ‘has been the apparent absence of any sociological basis for divided jurisdiction in this country’. It could be, however, that there are other reasons—such as improvement in the quality of governance through a regime of serial referenda—that could still be persuasive. The best of the students of modern Australian federalism, Brian Galligan, has attempted to show how strong popular involvement has imparted republican legitimacy to the system.

Although the most important recent work on Australian federalism has thus been Galligan’s A Federal Republic (1995), this work would have been even better if it had dealt more fully with head-of-state roles. Galligan searchingly uncovered and criticised a number of the premises that had long dominated thinking about the Australian constitutional system. His great accomplishment is to demonstrate that all the various proponents of responsible government have paid insufficient attention to the considerable constraints that have been placed on all our governments and their constituent branches by our federal constitutional framework. These constraints are, in Galligan’s (1995:14) view, appropriate and legitimate, because federation entailed a ‘transformative act of the Australian people’. In this respect, he is aligning himself with one of the two traditions that have dominated Australia’s ‘dual constitutional culture’: the federal (which Galligan favours) and parliamentary responsible government (Galligan 1995:50).

Galligan’s (1995:14) central proposition is that Australia already possesses a republic, ‘because the constitutions, for both the Commonwealth and the States, are the instruments of the Australian people who have supreme authority’. The people are claimed to have exercised this authority because they democratically approved the constitution at the end of the nineteenth century and since then have had to approve in referenda any further formal changes. This regime is a ‘crowned republic’ because the Australian people considered the monarchy appropriate to the needs of the federating nation (Galligan 1995:18).

There are, however, serious problems with this argument. Galligan’s rather too-ready acceptance of the monarchist slogan that Australia is already a crowned republic passes over the very considerable tensions that exist between the monarchical and republican styles of governance.

The fact that our forebears considered the Crown to be a central feature of the legitimation of the new constitution has led to the continuation to the present day of much of the ‘good chaps’ culture of governance, especially but not only in gubernatorial offices. And sometimes the ‘good chaps’ have not been up to the task of policy development in a federal system. As Sawer and her colleagues (2009:295) have recently observed, ‘The system creates subnational “veto points” that can obstruct policy which a national government has been elected to enact and hence frustrates “the will of the people”.’

This leads us to a second problem and that is whether the contemporary citizenry will be satisfied that it has participated sufficiently in the shaping of our constitutional framework for it to be accorded full democratic legitimacy.

Unlike Galligan, who has been quite content to contend that the necessary constitutional legitimation was achieved in Australia in the one founding moment more than a century ago,[3] Ackerman (2007:1800) explicitly considers the implications of long lapses in time: ‘It is one thing for South Africans or Germans to follow a constitution handed down a decade, or a half-century, ago; quite another for Americans to cling to an antique text that fails to mark any of the nation’s recent achievements.’

Galligan is thus insufficiently critical in his assessment of the Australian constitutional arrangements. He is so intent on demonstrating that much of the needed reforms of our governance can be achieved through ‘subconstitutional institutions’ (Galligan 1995:37) that he is insufficiently sensitive to some of the tensions that underlie our system.

How well does the Australian regime handle these tensions, which are inescapable in any republic? In other words, how good is our republic? This is a question Galligan does not directly address. Instead, he contents himself with several iterations of a populist point: that the people usually have more sense than the ‘expert’ elites who frequently distrust them. Because the Turnbull report was based on ‘an interpretive tradition of arid legalism’ (Galligan 1995:25), it lacked the faith in the good judgment of the Australian people that ultimately led Galligan (1999) to support direct election of the head of state.

It is, however, surely possible to develop the Galligan argument further. He (1995:135) has himself noted the ‘patchwork of human rights measures’ that has emerged in recent years. He has also stressed the need for a strengthening of the consensual elements in our public life (Galligan 1995:132, 213). These two themes have subsequently been linked in the 2005 NISA report, which called for recognition of a separate governance review council. Neither Galligan nor NISA has, however, given consideration to the ways in which those playing roles in head-of-state offices might be able to take the lead in the development of such bodies, which could substantially strengthen the consensual dimensions of public life.

d) Strong upper house

Bicameralism does not sit easily with Westminster regimes. As the Abbe Sieyes observed long ago, if the governing party controls the upper house, much of what that house does is superfluous. If, on the other hand, the government of the day does not control the upper house, much of what it does will be obstructive (Uhr 2008:13).[4] Upper houses retain their attractiveness, however, for the more consensually minded democrats, for in most jurisdictions they have shown greater readiness than their lower house colleagues to become involved in policy development through committee activity (Halligan et al. 2007).

In modern democratic times, the balance of power has shifted towards lower houses in most bicameral regimes. In the Australian states, for example, most upper houses have lost much of their blocking powers. Contemporary theorising has also followed this trend; thus Ackerman’s framework of constrained parliamentarianism envisages an upper house with only ‘half’ powers.

Although Ackerman (2000:671 ff.) gives some consideration to federalism as one of the constraints in his framework, he does so in a curiously limited way. His discussion of federalism is devoted almost totally to the ways in which it can shape upper houses at the national level. And in his advocacy of German-style ‘half-house’ upper houses, he gives insufficient attention to the optimal balance that should be struck between the powers of an upper house, on the one hand, and its effectiveness, on the other. The Australian experience suggests that a ‘half-house’ upper house might not be powerful enough to be properly effective and that greater powers might therefore be desirable, even though these powers might very occasionally be misused. In addition, Ackerman’s focus on the relation between federalism and his preferred ‘one and a half’ legislature raises a serious problem that he does not consider. Upper houses in federal systems are more likely to be in serious political conflict with their lower houses than are upper houses in unitary systems (Tsebelis and Money 1997:212).

There have been strong voices expressing a view contrary to that of Ackerman—that accountability should weigh more heavily than democracy. Consider, for example, some of the arguments recently advanced in the revealingly entitled volume Restraining Elective Dictatorship: The upper house solution.

In the opening chapter of the volume, the editors make the important point that ‘an institution with its own democratic credentials constitutes a far more substantial accountability hurdle than any creation of ordinary statute law’ (Prasser et al. 2008:6). They do not, however, go beyond the Parliament in their search for appropriate democratic mechanisms for holding the Executive to account. Like all the contributors that follow them, they do not directly address the problem caused by rigid party discipline. Instead, they seem to assume that the benefits of having an upper house that lacks a government majority will always outweigh the costs.

e) Professional public service

Table 2.3 Professional public service

Context set by Sawer et al. (2009:183)

Strengths

Weaknesses

The police and the military effectively under civilian control

All police services subject to institutionalised civilian oversight

Increased intergovernmental cooperation in efforts against organised crime

Lack of accountability in outsourced quasi-policing activities

Inadequate resourcing of intelligence services watchdog

Lack of diversity in police and armed services and continuing harassment issues

There is sufficient testimony to the extent of politicisation of our public services to justify a searching examination by a council of state. No-one alive is better placed than former senior minister and governor-general Bill Hayden to offer a judgment here, and he (2008:xii–xiii) considers the process of politicisation to be ‘well advanced in the Commonwealth’.

When they came to consider the ways in which the integrity of the public services could best be secured in an age of ‘political management’, Halligan and Power unsurprisingly commented favourably on a then recent proposal from the Review of Public Service Management in Victoria (which Power had chaired):

The Executive Branch would commit itself to the realization of values of equity and efficiency, in their several meanings…

[The review] concluded that the principles of merit and equity [required the establishment of] a new statutory body with a focused mission—a Commission of Merit and Equity. (Halligan and Power 1992:252)

A decade and a half later, the just retired Australian Public Service Commissioner, Andrew Podger (2007), presented a powerful argument that strongly indicated that the Hayden view was correct—that power had become too heavily concentrated in the hands of the prime minister and the head of his department. It was, Podger suggested, time for administrative values to be strengthened and the Halligan/Power work had suggested a most effective way for this to be done: through the establishment of a new collegial body such as the Commission for Merit and Equity that had been recommended by the Victorian review.

How this commission would best be formed, and how it would relate to other, similar corporate bodies that have recently been recommended, such the NISA Governance Review Councils, would in each jurisdiction be matters best left to the pragmatic judgments of the collegial body that would head up a proposed monitory branch: a council of state.

f) Independent judiciary

Table 2.4 Independent judiciary

Context set by Sawer et al. (2009:44)

Strengths

Weaknesses

Independence of the judiciary

Legal assistance programs to enable wider access to justice

Availability of judicial review of administrative decisions

Restrictive funding guidelines for legal aid

Disproportionate rates of incarceration for Indigenous Australians

Inadequate protection for whistleblowers

Limited access of asylum-seekers to rule of law

In the words of a former Chief Justice of the High Court, the court has ‘an uneasy and ill-defined relationship with the other arms of government’ (Mason in Patapan 2000:viii). The principal reason for this unsatisfactory state of affairs has been the court’s clear recognition in recent years of the political dimension of much of its work. By discarding the ‘apolitical’ mask, the court has of course laid itself open to the claims of the underprivileged, as the Sawer et al. list of ‘weaknesses’ in Table 2.4 shows.

The now largely discarded ‘apolitical’ view was put by former High Court Chief Justice Barwick: ‘the United States Supreme Court was inevitably drawn into political issues because it was required to interpret that country’s Bill of Rights. Australia had no Bill of Rights, so the Australian High Court had no political questions to decide, went Barwick’s extraordinary argument’ (Kercher 1995:181). The discarding of one orthodoxy has, however, not yet been followed by a coherent statement of the nature and boundaries of the form of politics with which the judiciary is now grappling. In the absence of such an understanding, we find that some attorneys-general are now refusing to play the traditional roles of defenders of the judiciary when they face political attack. A council of state along the lines I am suggesting would be well placed to produce the needed coherent statement.

g) Securing human rights

Table 2.5 Securing human rights

Context set by Sawer et al. (2009:72, 98)

Strengths

Weaknesses

Generally unrestricted freedom of movement, expression, association and assembly

No officially condoned violence or use of death penalty

Existence of a national human rights institution

Anti-discrimination legislation in all jurisdictions

Generally wide access to employment and social security

Adequate food, shelter and clean water available to most Australians

Widespread availability of health services

Compulsory and free school education

Generally effective corporate governance regime

No national charter of rights

Curtailment of rights by anti-terror laws

High levels of domestic violence

Inadequate protection of human rights of asylum-seekers

Less secure employment with growth of workforce casualisation

High Indigenous and youth unemployment

Lack of universal statutory paid maternity leave

Persistent gender pay gap

Seventeen-year life expectancy gap between Indigenous and non-Indigenous Australians

Growing problems of homelessness and housing affordability

Laws restricting trade union activities

In an address to the National Press Club immediately after the release of the report of a National Human Rights Consultation Committee, Frank Brennan took the unusual step of distancing himself from one of the key recommendations of the committee that he had just been chairing. He was reported as having expressed doubts about giving the High Court power to issue declarations of incompatibility over legislation, saying this ‘might not be workable’. The public is entitled to ask just what has been going on.

It would seem that the National Human Rights Consultation Report (Australian Human Rights Commission 2009a) has been fatally flawed by the assumption that has been questioned above: that there should only ever be three branches of governance. At no point does it question the orthodox division of government functions into just three categories: legislative, executive and judicial. As a result, it wrestles continually, but ultimately unsuccessfully, with the attainment of one of its key objectives: to respect the ‘sovereignty’ of parliament. This objective cannot be reconciled with the ‘dialogue’ approach favoured by the committee—for one very good reason. The Australian Constitution requires the High Court to confine its activities to judicial matters, yet any attempt to ‘judicialise’ a charter of human rights inevitably leads to a challenge to the sovereignty of parliament. The High Court can concern itself with any matter when there are two parties in dispute, and in human rights cases one of these parties inevitably has to be a government minister, who is also a Member of Parliament.

So why did the committee favour the ‘dialogue’ model, especially when it agreed that there had been precious little dialogue in the neo-Westminster regimes—in Britain, Canada, New Zealand, the Australian Capital Territory and Victoria—where it had been introduced? And why did it not give consideration to other ways in which dialogue between the leaders of the branches of government could be encouraged? The answers to both of these questions can be gained if the assumption that there can be only three branches of government is questioned. The committee favoured the dialogue model because it was the one that came closest to respecting the sovereignty of parliament; whenever the courts found that an act was incompatible with the provisions of the Human Rights Charter, it would not rule the new act ultra vires, but would simply refer the offending act back to a minister for attention. This was close, but not quite close enough. If a fourth ‘monitory’ branch of governance—headed up by a council of state on which the leaders of the three recognised branches were seated—were to be established, an appropriate forum for inter-branch dialogue would be available. Importantly, any judges seated on this body could discharge their functions without thereby compromising their roles on judicial matters (see Note 4 in Section 4 for Zines [2008] on judges appointed as personae designatae). And if heads of state were to be involved in the work of these councils of state, another important assumption—that the head of state could be safely ignored—would be exposed.[5]

h) Integrity of major institutions

Table 2.6 Integrity of major institutions

Context set by Sawer et al. (2009:205)

Strengths

Weaknesses

Corruption low on international scale

Recognition by three states of the need for generalist anti-corruption commissions

Public inquiry into bribery of Iraqi officials over wheat exports

No generalist anti-corruption commission at the federal level, nor in Victoria, South Australia or Tasmania

Slowness to implement Bribery Convention

Widespread use of government advertising for electoral purposes

Lack of uniform regulation of post-separation employment of ministers

Lack of uniform regulation of lobbyists

The serious ‘weaknesses’ in Table 2.6 have arisen because understandings of the three key elements in my argument—trust, institutional integrity and governance—have been dealt with in separate disciplinary contexts. The gap that I propose to fill with the concept of fiducial governance has come about because the phenomena concerned have ‘fallen through the cracks’. Not one of the best recent treatments—of trust (Braithwaite 1998; Tilly 2005) and of institutional integrity (the NISA project [Griffith University 2005] and Head et al. 2008)—has satisfactorily come to grips with the political issues that inevitably surround major machinery of government design challenges. Let us consider these cases in turn.

Braithwaite (1998:370) provides a frustrating conclusion to what is otherwise an enlightening essay: ‘Private and public sector ombudsmen and auditors, independent arbitrators and judiciaries, professional societies, a free press, and international institutions can all be important to nuanced institutionalization of distrust.’

But just how might this importance manifest itself? Braithwaite does not provide a clear answer to this question. In part because he does not even consider the Braithwaite essay, Tilly has even less to say about such institutional matters.

The starting point for any discussion under this heading must be the important NISA report, which has called for each Australian jurisdiction to create a ‘non-partisan’ governance review council to coordinate the activities of the several bodies now concerned with issues of institutional integrity. It has also stressed the need for these councils to gain ‘institutional champions’ (Griffith University Institute for Ethics, Governance and Law and Transparency International 2005:61); and it is hard to see how political leaders could not be prominent among these champions. NISA does not, however, show how these champions—some of whom are necessarily party leaders—could properly relate to the new councils. Indeed, the NISA report pays no attention to possible ways in which those playing head-of-state roles could become involved—an omission that would have been inconceivable in a report written a single generation ago, when ‘the Crown’ still loomed large in the protection of the integrity of our major institutions.[6]

The NISA (2005:68) report does amply justify its major conclusion that ‘the Commonwealth should take the opportunity of a new institutional reform to inject a significant amount into its core institutional capacity’ to assure integrity. Accordingly, its first two recommendations are that the Commonwealth should establish an integrity and anti-corruption commission and a governance review council, with memberships for the most part made up of the leaders of those institutions the report had earlier identified as ‘core’: ombudsman, auditors-general, and so on. Are these, however, sufficiently ‘heavy’ to provide the needed leadership, given that the report bemoans the ‘lack of effective institutional champions’ (p. 61) and raises the crucial question: ‘Do senior political and business officeholders possess…the will to provide genuine leadership in integrity matters’ (p. 62). This is the crucial question, for, as the report goes on to argue,

for…the most fundamental dimension of the integrity system to work, there must also be mechanisms to ensure that appropriate parliamentary and executive standards are set and maintained, and that alleged integrity breaches can be investigated and publicly reported upon, even when it might be in the perceived self- interest of all political parties to let the truth languish. (Griffith University Institute for Ethics, Governance and Law and Transparency International 2005:85)

The report has, however, earlier stated that it ‘did not reach definitive conclusions on how integrity system capacity should be developed in relation to political parties’ (p. 77). It is not surprising, then, that the report considered overall progress at the Commonwealth level had been unacceptably slow and halting. It would seem that the politics of constitutional reform needs further consideration. Where might genuine political champions be found at the Commonwealth level?

The obvious place to start a search for such champions is the list of institutions provided by the report’s ‘mapping’ exercise. And here we encounter a most surprising omission, for again there is no acknowledgment of the integrity role that is being played, or could be played, by the head of state. Inevitably, then, there is no consideration of the ways in which integrity assurance could be strengthened by the move to a republic (although there is a passing reference to Braithwaite’s ‘republican conception of guardianship’; p. 16). Both former Governor-General Paul Hasluck, who introduced important innovations in this area, and former Victorian Governor Richard McGarvie, who emerged a few years ago as the latest champion of the Hasluck approach, are ignored.

This lacuna is in itself testimony to the desiccated state in which the Australian monarchy now finds itself; even a single generation ago, it is inconceivable that a wide-ranging review of public integrity would have dared to omit any reference to the significance of ‘the Crown’.

What is needed is a high-level collegial body with a membership similar to that of the Irish Council of State (which is discussed briefly below). The early recommendations of the NISA report could easily be reconciled with such an initiative. For example, the council of state could be requested to consider adapting the proposed integrity and anti-corruption commission so that it could serve as the council’s secretariat. And the proposed governance review council could be constituted as a committee of the council of state.

The NISA project at least touched on the ways in which these several activities might be coordinated, with its recommendation that each Australian jurisdiction should establish a governance review council to discharge that purpose, but it failed to go on to examine the political issues raised by such a major restructuring of the machinery of government.

i) Serial referenda

The Australian Constitution has proven extremely difficult to change, with only eight proposals (of 44) being approved in referenda during more than a century. And it is now more than a decade since any referendum was put to the people. Australia is thus far away from Ackerman’s preferred state—where the citizenry would regularly be accorded the opportunity to vote on major issues.

Few commentators have considered the possibility that it has been the party system that has been responsible for many of the negative votes. While it has been widely recognised that bipartisan agreement has been a necessary prerequisite for success, few have pondered the implications of the observation of one recent prime minister (John Howard) that often even the securing of such agreement might be counterproductive, in that the citizenry might have well-founded suspicions that anything that the major parties agreed on might well serve their shared interests, which might well not be the public interest.

Clearly, any reforms that improved the fiducial standing of the party system could improve the chances of referendum success, as would regular referendum experience for the citizenry. More generally, I shall be arguing below that much valuable work can be accomplished by the several councils of state and their committees before they embark on the tasks of securing popular approval through serial referenda.

j) Viable role for the head of state[7]

In his persuasive analysis of the governor’s role in Australia, former Victorian Governor Richard McGarvie (1999) placed great stress on the constitutional counselling function. Because governors are in effect chosen by prime ministers and premiers, they are sufficiently trusted to be accepted as providers of continuing confidential counsel to ministers requiring royal assent to their respective pieces of legislation. McGarvie drew two important lessons from his analysis: the governor-general has to be trusted by the government of the day and therefore should continue to be selected by it; and the governor-general should continue to have substantial formal executive powers, so that ministers have to come to him or her with requests for formal assent. Ex-ministers to whom I have spoken have confirmed the value to them of this counsel.

In addition, McGarvie subtly explores the relationship between Australian heads of government and their governors. He demonstrates that this relationship—one of increasing importance in securing stability of governance throughout our nation’s first century—is based solidly on conventions backed by sanctions. The chief minister and his/her governor are locked together in a structure of mutual deterrence. Each may, at considerable cost, secure the dismissal of the other but, knowing this, each of them customarily desists. This is a most important ‘buffer’ protecting both the chief minister and the pair sharing the responsibilities of the head of state.

More recently, Boyce (2008) has furthered what I might call the ‘Hasluck/McGarvie project’ through the identification of four central themes

  • the need for the role of the modern head of state to be given more serious attention than it has to date enjoyed in debates about the desirability of a republic
  • the extent to which the conventions that constrain the immense formal gubernatorial powers might be codified (at least in part)
  • the ways in which educational and other programs might heighten public awareness of the gubernatorial roles currently being played
  • identification of the most appropriate mechanisms for the determination of continuing reforms and rationalisations (which would not necessarily lead to republican regimes).

To start with, Boyce favours a working party of governors’ secretaries consulting closely with officials of chief ministers’ departments and reporting to both a governors’ conference and concerned cabinets.

Although these themes of Boyce’s are valuable ones, he is on the whole fairly cautious in the reforms he advocates. So, when he turns to the exploration of his four themes and their implications, the limitations of his approach become manifest. Because he sticks so closely to current practices and orthodoxies, Boyce seldom allows himself the freedom to discuss reform proposals that go beyond such orthodoxies. For example, he accords little attention to experiences in those regimes—the semi-presidential—that have been growing greatly in numbers around the globe in recent decades and that can offer many important lessons for constitutional reformers in Westminster systems.

This limitation of Boyce’s approach is most evident in ‘Republicanism’, the penultimate chapter of his book. Despite its title, The Queen’s Other Realms gives authoritative support to mainstream Australian republican thinking. That mainstream has steadfastly clung to the merger assumption: that because the office of the head of state should be kept within minimalist bounds, its function should be discharged by a single officeholder, who would replace the current bicephalous arrangement. Although Boyce notes a serious tension between the ‘twin roles’ of constitutional guardian and symbol of national identity, he does not go on to consider the possibility that these roles should be performed by separate officeholders. In this respect, as in most others, he is firmly in the mainstream. Accordingly, he offers no criticism of the current strategy of the ARM, which is to force the electorate to choose between a number of ‘models’, all of them seriously flawed, in part because they all rest on the merger assumption.

One of the most important of Boyce’s observations is his demonstration of the ways in which the traditional royal prerogative has in modern Westminster regimes been appropriated by political executives, to their very great empowerment. While he goes on to consider the ways in which residual head-of-state entitlements have allowed some sovereigns and their surrogates to play the limited Bagehotian roles of being consulted, and proffering warning and encouragement, he does not give as satisfactory an account as McGarvie previously did in his Democracy of the political economy of relations between heads of state and heads of government in Westminster regimes, and of the place of conventions in those political economies.

One pattern that has become increasingly apparent only in the months that have elapsed since the appearance of Boyce’s book is that Australian Labor prime ministers are now selecting activist governors-general. Commenting on one of these, Sir William Deane, Boyce observes that his high profile ‘is unlikely to be repeated’—a prediction that now is being challenged by the new Australian Governor-General, Quentin Bryce. We still lack a coherent account of the ways in which a modern governor might proceed. Some guidance can be obtained, however, from a perusal of Australia’s leading student of the ethics of governance: John Uhr.

Uhr has extensively discussed republican writings in much of his work and has been closely associated with the NISA project, but has ignored the head of state in his most recent book, Terms of Trust (2005). Some valuable lessons can be learned from a comparison of the Uhr approach with that informing this monograph.

Uhr and I share commitments to parliamentary democracy, institutional integrity and republicanism. We differ in the degree of contingency that we are prepared to accept in the formulation of our respective reform strategies. Uhr does not question the central features of the power structures of Australian governance, such as the rigid disciplines of the parties or the orthodoxy of the three-branch division of powers. Instead, he is content to advance a number of modest but worthwhile reforms that make existing structures of dominance more accountable, without ultimately questioning their rationales (see, for example, the dozen recommendations with which he concludes his important 1998 work on deliberative democracy). As he observed later, ‘policymaking is all about compromise’ (Uhr 2005:39). At no point does he move on to a discussion of the topics that are at the centre of my reform proposals: the need for a collegial body to head up a monitory branch, in pursuit of many of the goals that Uhr covers under the rubric ‘terms of trust’.

It will have become all too apparent by now that I favour the strengthening of positions that have long been underused—those relating to head-of-state offices. It is at this point, however, that I must attempt to resolve an issue that might seriously disturb the coherence of my argument. Long before I became interested in the problems arising from the threats to the integrity of the major institutions of governance and the need to proceed gradually on constitutional reform if we were to counter these threats, I belonged to the ‘republic now’ camp. And while I belonged in that camp, I had propounded a strategy for the immediate strengthening of head-of-state offices. While much of this strategy has had to be revised to make it consistent with my more recent indirect approach, a good deal of it remains in place. Therefore, I have decided to devote the next section of this monograph to an ‘unpicking’ of this strategy, before returning in the concluding section to a consideration of the ways in which the implementation of such a strategy could assist in the tackling of the major problems confronting advocates of fiducial governance.

[1] Surprisingly, this report concerns itself only in passing with one of the major categories suggested by Ackerman: a strong upper house of the Commonwealth Parliament. Unsurprisingly, it, like Ackerman, ignores the possible reform roles of heads of state.

[2] It had been my expectation that a recent monograph in this series (Brown and Bellamy 2007) would provide much that could be valuable for this project. Brown is after all a first–class scholar, and one who had played a leading role in the earlier NISA project (Griffith University 2005) that had paid considerable attention to the importance of institutional integrity for governance regimes in Australia. I was, however, to be disappointed, for Brown ignored the NISA report in the later work.

[3] It should be acknowledged, however, that even long-distant public affirmations could be of fiducial significance. As Zines (2008:557) puts it: ‘The concept of sovereignty of the people, therefore, must be regarded as either purely symbolic or theoretical. Seen as a symbol it might be regarded as similar to the symbol of the Crown, uniting the various organs and elements of the organisation of government under one concept.’

[4] A recent innovation in Singapore has shown how the review function so often associated with upper houses might in a unicameral regime be discharged by another institution—in the case of Singapore, none other than a directly elected presidency (Tan 1997)!

[5] It is extraordinary that the Human Rights Commission report, like the NISA report before it, completely ignores the office of head of state.

[6] This is another assumption—that the head of state no longer has any relevance to the fostering of institutional integrity—that is hampering reform. Possibly because republicans are nervous about strengthening a head-of-state role that has traditionally been associated with the monarchy, they have ignored the possibility that a republican leader could play a significant role in integrity assurance. I have made this point in communications with the NISA secretariat and with academics associated with the NISA project, but have received no response.

[7] Throughout this monograph, I have not sought to differentiate the gubernatorial roles in the Commonwealth and state/territory jurisdictions, although I recognise that the specifics of these roles will require the careful attention of each council of state.


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