Solving the head-of-state problem.(Letters)(Letter to the Editor)

SIR: The Hon. Mr Justice Handley (June 2003) is to be congratulated on his astute and careful assessment of recent constitutional problems arising from the head-of-state issue in Trinidad and elsewhere. He rightly points out the latent weakness in constitutions that permit a debilitating stand-off between president and prime minister. Moreover, he correctly notes the continued push in Australia towards a system similar to that of Trinidad where "a republican president is grafted onto a constitution framed for a Westminster system of government under the crown".

Former Victorian Governor and Supreme Court judge, the late Richard McGarvie published many articles and a 1999 book (Democracy: Choosing Australia's Republic) foreshadowing the consequences of such an adverse move in Australia. In resolving our sensitive head-of-state issue, he undoubtedly shared Mr Justice Handley's view that "those ... [proposing] a republican constitution for this country must [first] do their homework". Unlike many of his fellow critics, however, Mr McGarvie took the additional step of separating the republican debate into three distinct questions. The easy question (whether to become a republic) depends on emotive preference. It distracts attention from the hard and technical questions: determining which "models for head of state in a republic would best maintain the character, strengths and quality of our present democracy", and the technical method for achieving this end.

For the record, Mr McGarvie did not align himself with either the monarchist or republican causes. Nevertheless, like the Hon. Justice Handley, Mr McGarvie denounced the Australian Republican Movement's 1998 minimalist model as taking little account of the existing checks and balances between the powers of an unelected official (the governor-general) and those of a democratically-elected federal government. Mr McGarvie believed that if constitutional autonomy is to be achieved here, it must be in a manner that least strains our federal democracy.

After stepping down as Victorian Governor in 1997, Mr McGarvie developed an elegant solution that fully preserves the strengths and safeguards of our political system. If Australia is ultimately to sever its link to the British monarchy, the remaining powers of the Queen (with one exception) would be transferred to the governor-general and governors so that they would each become the formal as well as operative head of state in their systems. The monarch's one remaining power--that of formally appointing and dismissing the governor-general or governor on the advice of the prime minister or state premier (as the case may be)--would be undertaken by a non-hereditary Australian Constitutional Council of three, appointed by automatic constitutional formula. Under the McGarvie model, there is no chance of a destabilising Mexican stand-off between the head of state and prime minister (or state premier) because the Constitutional Council preserves the existing balance maintained by the role of the monarch. It needs to be emphasised that the Constitutional Council has no operative powers in its own right, and is bound to act on ministerial advice, exactly as the monarch is constrained to act on the advice of the democratically-elected government.

I was fortunate to work with Richard McGarvie and the Corowa Shire Council in setting up the Corowa People's Conference 2001, designed to recommend a viable process to resolve our stalled head-of-state issue. One outcome of the conference was the establishment of a Bill Drafting Committee. That Committee (which includes myself) has since prepared draft legislation, the Constitutional Arrangements (Head of State) (Victoria) Bill 2003. The Bill ...