A conventional convention.

The Constitutional Convention closed in Canberra on Friday, 13 February, with a sense of victory, even euphoria among the great majority of the delegates. But was their elation justified? Was the Convention the success the closing moment suggested?

Despite numerous differences among the 152 delegates, a numerical majority in support of a republican model had emerged by the end of the Convention. It was the so-called `bi-partisan' model, whereby the Head of State would be chosen through a process of public nominations, followed by short-listing by Committee, then ratification of the choice by a two-thirds majority of the joint sitting of both Houses of Parliament. Dismissal of the Head of State would remain in the hands of the Prime Minister, to be ratified by a simple majority of the House of Representatives. The powers of the republican Head of State would not be codified, and would remain as far as possible those held at present by the Governor-General.

Those who supported this model got their way in the final vote, as majorities do when heads are counted. Although the manner of counting was challenged by Queensland delegate Paul Tully, on the grounds that the number of abstentions should be counted as negative votes (constituting, therefore, a majority against the model) there was no chance of this challenge succeeding, and having won, the majority's rejoicing was both natural and inevitable.

A different type of victory lay in the summing-up speech given by Prime Minister John Howard. Howard had inherited the promise of a Convention from the previous Liberal leader, Alexander Downer, and as Prime Minister he had set it in motion with extreme reluctance. He had, at the same time, undertaken to hold a plebiscite which would offer a choice from various republican models, if a `consensus' did not emerge at the Convention. He expected, it seems, that despite all the evidence to the contrary, the Convention would conclude with a consensus in favour of the Monarchy, or, as it became euphemistically known at the Convention, the `status quo'.

But at some point in the process, Howard must have been advised that the alternative of a plebiscite might become a reality, and that the likely outcome of a plebiscite would be the choice of a republic based on a directly elected Head of State. The result of the Convention elections, in November last year, showed clearly that the republican alternative would prevail over the status quo. It was imperative, then, that the Prime Minister should see the Convention end with a republican victory that he would not be forced to repudiate, and even better, with a model that he believed would be defeated in a referendum.

By his opening speech on the first day of the Convention, Howard had modified his demand for a `consensus' to a `clear view', and even further to `clear support'. He was leaving every avenue open to paint himself out of the corner in which he had found himself. John Howard's pleasure when things fell into place was manifest. The vote in favour of the bi-partisan model was, in fact, only a small--and far from an absolute--majority. But Howard was determined that this satisfied his demand for a `clear view', the nature of which he had been careful never to specify. Even the monarchists wanted a referendum by now. He could please them, and please the republicans at the same time. He was genuinely statesmanlike, something that is rarely said of him.

The Prime Minister's triumph--for that is what it was--should have served as a warning to republicans. Some republicans, `maximalists' like Pat O'Shane, had publicly accused the Australian Republican Movement (ARM) of doing deals with the Prime Minister, and of engineering the outcome prior to the Convention debate. No doubt deals were done. But they were doubtless also done with the Monarchists, indeed with all who would deal. The issue was not whether John Howard and Malcolm Turnbull shook hands late one night, but what it meant to find the Prime Minister, an ardent Monarchist (and, clearly, much more than just a supporter of the `status quo') in a position where he welcomed a referendum on the republic.

Essentially, the referendum will ask the voters to decide upon constitutional change for which few will have great enthusiasm. The Convention's elation will not carry over to the republican campaign, unless there is a profound change of public opinion in the meantime. Although compromise was inevitable, and it is both a skill and a virtue in politics, the compromise that would have been most appropriate in such a matter lay between the people and the republican delegates, not between the delegates themselves. The majority of Australians wanted and still want a directly elected Head of State. The bi-partisan model offered public nominations for the Head of State's office, rather than simple choice of a name by Cabinet (as the ARM's previous proposal implied); but it rapidly became clear that this was simply a concession, not a genuine compromise where positions are exchanged.

It is true--and this was repeated many times at the Convention--that the ARM (with their old model still intact) won more votes than any other republican group. The supporters of direct election were in the minority. But the ARM in fact campaigned with an `open mind' on the means of choosing the Head of State; that is, its strategy was to adhere to the Parliamentary-choice model, but make it clear that it was prepared to support direct election if it remained the people's preference. Even keeping its options open, the ARM did not win as many places as it had expected. Furthermore, it did not win the majority of places in the majority of states, and in a referendum this pattern of support (rather than the simple national count) may prove critical.

The Prime Minister's pleasure at the end of the Convention was based, as much as anything, upon his overriding opposition to direct election. It was John Howard, more than anyone, who articulated the view that a directly elected Head would have a rival powerbase to the Prime Minister's and would, in his words, `serve to weaken the parliamentary system itself'.

During the Convention, this view was asserted much more than it was demonstrated. But more significantly, many supporters of direct election in fact want a rival power base. They see this either as a form of `direct democracy' (in contrast to the representative democracy upon which Australia's parliamentary institutions are built) or as a means of building checks and balances into the political system, so that the dominance of Cabinet over Parliament might, if it became excessive or unlawful, be checked by another office.

The first notion---one which envisages a `direct' conduit from the people to the office of Head of State is underpinned by what is, in fact, the least democratic principle of all. In common with proposals for citizen initiated referenda, the belief that the Head of State should respond directly to the needs and interests of his or her electors amounts to little more than a delusion that the personal views of all individuals would be acceded to. It leads logically to the notion, indeed the reality, that simple majorities must prevail over minorities on each political decision, or to the even more alarming idea that the views of certain individuals only should prevail. The representative system, in contrast, grew out of the simple impossibility, as well as undesirability, of having members of parliament as personal `delegates' of individuals, in mass, egalitarian democracies. The old idea of the monarch as a `personal' representative, or (just as disturbingly) as the embodiment of the nation has been replaced in the `direct democracy' scenario by the image of the President in this role. This is one reason for the strange affinity that emerged at times between the Monarchists and the direct-election republicans.

Those for whom direct election would provide a check and balance on executive government have a much more serious proposition to make. John Howard's argument that direct election would weaken the parliamentary system would be disingenuous, were it not so ritually asserted. The parliamentary system has never been `strong' in Australia, since the rise of highly disciplined parties early this century. It is the Prime Minister and Cabinet, not the parliament, that might be weakened if a real alternative power were created by direct election.

But would this necessarily occur? Out of the conviction that direct election was, ipso facto, incompatible with the Westminster system, two orthodoxies arose. One, that a directly elected Head of State would run amok unless all the powers, including the `reserve powers' (powers to act without or contrary to ministerial advice) were codified, and the other that codification was not possible.

The Governor-General has, as things stand, considerable constitutional powers. He might refuse to sign Bills, or fail to consult in exercising command of the Defence Forces, or decide whom to appoint as ministers of state upon his own initiative, or do many other things. That he does not do so is a matter of tradition and convention. The Monarchist case is that a President (however chosen) would feel free to overlook or override tradition, since nothing would bind him or her, the long shadow of the Queen no longer being cast over the President's office.

And this is the crux of the issue, even for the republicans. If codification of powers is impossible (which seems to be the case, politically, even if it could be achieved constitutionally), then any President might experience the desire to flout tradition and would be free to do so. The minimalist republicans have attempted to solve this problem by working on the President's mind. They substitute parliamentary election for codification, that is, they argue that choice by the parliament will mean that the President will be unable to think of him or herself as independent and/or powerful. Like John Howard, they are convinced that direct election will go to the President's head.

This is a dilemma made for republicans by the Monarchists. Despite their long and unconvincing attempt during the Convention election campaign to persuade Australians that the Governor-General was the real Head of State, the Monarchists do not believe that an Australian Head is capable of acting in the manner of the Queen: that is, while bound by convention more than laws, she is understood to be impartial, restrained and constitutionally `wise'.

The republicans have, unintentionally, embraced this view. Like the conservatives who raised cries of alarm against the choice of an Australian Governor-General thirty-seven years ago (because they believed he would be `political', being beholden to party loyalties and unable to remain detached) they are persuaded that no Australian Head of State could respect the office and the need for it to remain `apolitical', unless his or her hands were tied first. The fact that Sir Isaac Isaacs performed his viceregal duties between 1931 and 1936 with probity and impartiality should at least help reassure those whose heart-in the words of a number of Convention delegates--`says yes, but head says no' to the idea of direct election. But it seems unlikely to do so.

What the constitutional timidity of the Constitutional Convention has given rise to is essentially an unexciting and unresponsive republican model. It is timid, too, in attempting to be a winning formula, before the conditions surrounding the campaign are fully known. It is true that the referendums in the past that did not have bi-partisan support have failed, and direct election would not have the support of the current federal government. But the strange constellation of Liberal and Labor leaders in the small states and territories who support direct election makes the picture much less predictable. If your Prime Minister says vote `No', but your Premier, from the same party, says vote `Yes', who is to say which authority will be followed? Especially if the majority of Australians are inclined to support direct election in the first place, and want to believe it can be achieved.

`Ultra' maximalist republicans at the Convention did not, however, help the cause of direct election by tying it to a range of other constitutional changes, such as an entrenched Bill of Rights. The case for a Bill of Rights needs to be made separately, if at all, and it needs to be recognised that those who do not favour entrenchment are not necessarily opposed to rights (as was, at times, implied). That the majority of the Convention delegates were prepared to include a broad statement of democratic principles and values in the Constitution's Preamble, but at the same time inserted the qualifier that these values should not be justifiable, suggests that many fell into the latter category.

Republicans will, of course, vote Yes for the Convention model, when the referendum takes place. But the expectation that the question will be put just as it emerged from the Convention together with the assumption that it alone can succeed rest entirely on the politics of the present remaining fixed into 1999. If (although it is unlikely) there were to be a new government, or (more likely) a new Prime Minister, then the mood of the leadership might change significantly. Support for alternative models may appear politically expedient; a commitment to a second referendum, if the first fails, might arise. It should not be forgotten that Federation was preceded by two referendures, only a year apart, and that, as the result of the failure of the first referendum in 1898, the Constitution was amended, to make it more likely to succeed at the second try.

It is unlikely, given the way Australia's constitutional history has unfolded in the past, and the uncertainties and national divisions surrounding the Convention's outcome, that the last word has been heard. What is certain is that Australia will, sooner or later, become a republic. This was already known from the Convention election results. The Convention changed very little in the delegates' positions. What deserved the euphoria of the last day was the fact that the republic is now in process. It has an authority and legitimacy that it would not have otherwise had, and which cannot now be turned back.

Helen Irving lectures in the Department of Social, Political and Historical Studies at the University of Technology, Sydney. She is the author of To Constitute a Nation: A Cultural History of the Australian Constitution, CUP, 1997.