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.