Truly choosy choosers and Richard Butler

In the wake of the Richard Butler gubernatorial resignation farce, George Williams floats an idea that I’ve been pushing on and off on this blog for a couple of years:

The first priority should be public discussion about the appointment process. It can be changed without a referendum, and may not even need a law passed through Parliament so long as the Queen continues to make the final formal appointment. This leaves considerable scope for imagination, and new approaches could include parliamentary appointment or even direct election.

Nevertheless, Williams shies away from a direct election model and advocates instead a process of public nomination and discussion, short-listing and then choice by the Premier. I fail to see why we shouldn’t have a system where the short-listed candidates (provided the government regards them as acceptable) shouldn’t be submitted for direct popular election. Why be a little bit pregnant? You don’t stay that way for long.

The principal conventional argument against a popularly-elected “head of state” is that a popular mandate would give him or her excessive and effectively unaccountable power, at least unless the Governor’s powers were codified (instead of being regulated only by unwritten and unenforceable conventions or understandings) so that he could be sacked if he exceeded them. Popular mandate without those additional steps just increases the possibility of a Governor (or G-G) using his or her dismissal power unwisely out of hubris or arrogance.

Yet that danger is equally inherent in the model Williams is canvassing. Not only does he advocate popular participation in the selection process for State Governors, but also (at least tentatively) that they should have security of tenure and be sackable on the same basis as judges i.e. by Parliament for “proved misbehaviour or incapacity”.

That would create a Governor with extraordinary and practically unchecked power, at least in a State with a bicameral system. A Governor threatening to exercise his or her powers in an excessive and improper manner (including the power of dismissal, or ignoring the “advice” of the Executive Council on passing legislation and the like) might well be practically unsackable, at least where the Upper House is not controlled by the government.

The “genius” of the system we inherited from Britain lies in the fact that the Governor (or G-G) is prevented inhibited from exercising his reserve dismissal powers improperly, or acting in normal times as anything other than a rubber stamp, by the fact that the Premier (or PM) can in turn recommend to the Queen that the Governor be sacked. Moreover, the Governor can still feasibly exercise the dismissal power despite the insecurity of his own position, because the final decision on whether to dismiss the Governor is made by a person (namely the monarch) who can reasonably be expected to be politically detached and relatively objective. Although convention requires that the Queen must ultimately bow to the Premier’s (or PM’s) will, she has a fair amount of elbow room and would certainly use it to decisive effect if a Governor was being unfairly threatened with dismissal to pre-empt his exercise of his own powers of dismissal.

Once we start down the road of popular election (or even nomination) coupled with increased security of tenure for Governors, we have no choice but to grapple with these broader questions, lest we destabilise the system and create a monster. Far better to experiment with models of popular nomination and election, but leave the mechanism for dismissal of the Governor untouched for the present. That would mostly avoid the sorts of dangers I discuss above, and also wouldn’t require any constitutional (or perhaps even legislative) change. It would also get citizens accustomed to the idea of participating in the selection process, and give us all a practical understanding of the surrounding issues and consequences of our choices.

PS – I should acknowledge that this idea isn’t totally original. David Solomon wrote a book called Elect the Governor-General in the wake of the 1975 Whitlam dismissal. However, my idea is broader than that, in that it involves using the States as “test-beds” for a variety of different selection/election models to see what works best in the evolved Australian political culture. In this respect I’m influenced by a neat little article Geoffrey de Q Walker wrote two or three years ago called Ten advantages of a federal constitution. One of the advantages Walker identified was the possibility of expermentation:

Federalism allows and encourages experimentation in political, social and economic matters [KAP – or legal and constitutional arrangements]. It is more conducive to rational progress because it enables the results of different approaches to be compared easily. The results of experience in one’s own country are also less easily ignored than evidence from foreign lands. All this is particularly important in times of rapid social change. As Karl Mannheim pointed out, ‘every major phase of social change constitutes a choice between alternatives’, and there is no way a legislator can be certain in advance which policy will work best. …

But experimentation has special advantages in dealing with the new problems presented in a rapidly changing society, or in developing new solutions when the old ones are no longer working.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

“the Governor (or G-G) is prevented from exercising his reserve dismissal powers improperly,”

Kerr?

“the monarch) who can reasonably be expected to be politically detached and (relatively) objective.”

That is true of the incumbent. She’s been around for a long time and kept her nose very clean, but no one knows what her successors might be like.

“if a Governor was being unfairly threatened with dismissal”

What is unfair? Richard Butler could make a pretty good case that he was unfairly hounded out of office by the Hobart Mercury, and Lennon made a politically expedient decision, unrelated to natural justice or the merits of the accusations against him, to get rid of him. Others would say Butler brought his troubles on himself. Would you want the Monarch to adjudicate cases like this?

Ken Parish
Ken Parish
2022 years ago

Kerr?

The Whitlam dismissal went wrong because Kerr failed to follow the rules i.e. failed to warn Whitlam of impending dismissal. I’m not defending the functionality of unwritten conventions in these situations, only the Russian roulette model with a Queenly circuit breaker.

Would you want the Monarch to adjudicate cases like this?

Yes, though only in the limited sense (advise and warn) that exists, until we come up with a better model. As Williams argues, Butler hadn’t committed a sackable offence, nor had Hollingworth for that matter. It was appropriate that both should resign, but not appropriate that they be sacked. And any workable republican model would not readily facilitate sacking of the head of state in such circumstances either.

Geoff Honnor
Geoff Honnor
2022 years ago

I’m not sure that problem here is one that can be fixed by popular election. Rather, a completely inappropriate person was appointed by the Premier for entirely the wrong reasons – “he’ll attract the world to Tasmania” was probably the worst selection criteria for Governor that I’ve ever heard. If it was international attention that Jim was after he should have secured the gubernatorial services of Koko the signing gorilla.

How a popular election would remedy all that isn’t entirely clear. Arguably it might make it worse. Governors should be quiet, dignified, self-effacing and have a limitless capacity for smalltalk and the concerns and interests of the kind of people who Richard Butler obviously wouldn’t give the time of day. In short, they should eschew the sort of qualities that are traditionally the prserve of the eminently electable in our society. The merest hint of ego-driven electability-centred ambition for the job should automatically exclude you.

As the Queen might say, it’s more a life vocation kind of thing than a career opportunity.

Ken Parish
Ken Parish
2022 years ago

Geoff

I think if the government (or better still a bipartisan parliamentary committee) were to vet and short-list public nominations before submitting the top two or three to popular election, that would resolve your concern. One would hope the committee would “pre-select” for the qualities you describe.

In any event, the point of my suggestion is that we should experiment to see what works and what doesn’t. As long as we do so while leaving the dismissal mechanism as it stands, there’s little or nothing to lose and everything to gain.

qm
qm
2022 years ago

I am opposed to the idea of popular election because I am confronted daily with people who have little understanding about the way that our constitutional system operates. They continually think that the role of the PM is akin to the role of the US president (and his nobs of steel is happy to go along with the ride) or that in casting a vote they vote “for” Latham or Howard.

Introducing the element of popular election to a vice regal position which is even less understood by the man on the clapham (or perhaps footscray) omnibus seems to me to further confuse the issue for the electorate.

Ken Parish
Ken Parish
2022 years ago

QM

Surely citizens’ ignorance isn’t an excuse for simply freezing the current system in place or shying away from democratic reform. If anything, that ignorance underlines the need for education and reform so that people won’t feel so alienated from and disinterested in the process.

As for thinking they’re voting for Latham or Howard, it isn’t necessarily stupid or irrational to look at the choice in that way. With modern Australian-style party discipline, the qualities of a local candidate are arguably less relevant to our voting decision than those of the party leader.

Scott Wickstein
2022 years ago

Koko the Signing Gorilla… thats Gold!

Geoff Honnor
Geoff Honnor
2022 years ago

“Surely citizens’ ignorance isn’t an excuse for simply freezing the current system in place or shying away from democratic reform. If anything, that ignorance underlines the need for education and reform so that people won’t feel so alienated from and disinterested in the process”

Absolutely but it’s not happening. QM is quite right. The public is woefully underinformed about the nature of our constitutional arrangements which is why they think that an elected Prez is a good idea: because the pollies can’t appoint him. It was apparent in the aftermath of the Constitutional Convention that a large number of Australians were under the impression that we were going to have an American-style arrangement with a kind of Australian Idol ballot thing to get someone up. This was helped no end by Howard running a “you can’t trust the pollies to appoint a head of state” line throughout the campaign. His subsequent appointment of Peter Hollingworth proved the point.

Instead of rectifying the lamentable ignorance that has brought this about, the punditariat is now in full pursuit of the elected President holy grail because “that’s what the punters want.” It’s Pythonesque.

qm
qm
2022 years ago

The ignorance of the citizenry is not a justification for keeping everything the same, but it is an indication that it is not only the system itself which defines whether the constitutional structure effectively embodies democratic principles.

In my opinion, a popularly elected GG would be a red herring – giving the (rather expensive) impression that people have the power in government by addressing that power towards a largely ceremonial position.

I don’t think our political system should be determined on the basis of “what people want” (ie a popularly elected head of state) if the people don’t have a great idea about what the system currently is and how it operates.

For what its worth, if we ever become a republic, then I think it will be with a popularly elected head of state. But I think that on the other side of the reform, people will find themselves just as confused about the system and their role in it, while we will have introduced a substantial expense and a further layer of politicking.

yobbo
2022 years ago

What’s Boonie up to nowadays?

Ken Parish
Ken Parish
2022 years ago

Not getting really pissed on Qantas flights anyway, if your experience applies to sports heroes as well.

Geoff Honnor
Geoff Honnor
2022 years ago

“What’s Boonie up to nowadays?”

Working on restoring the Gravett Server judging by the results so far.

snuh
snuh
2022 years ago

I think if the government (or better still a bipartisan parliamentary committee) were to vet and short-list public nominations before submitting the top two or three to popular election, that would resolve your concern. One would hope the committee would “pre-select” for the qualities you describe.

yes, but as you say “Why be a little bit pregnant? You don’t stay that way for long”. i mean, there aren’t many people who would be happy to choose from a list of only those individuals with the qualities geoff describes [no matter how desirable those qualities are for vice-regality].

also, yobbo, did you catch the panel. methinks they stole your joke.

yobbo
2022 years ago

Boonie wouldn’t be caught dead on Qantas nowadays.

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