Abstract
With the accession of a new Monarch in the United Kingdom, Commonwealth realms now find that they have a new head of state. In some realms, the end of the long and iconic reign of Elizabeth II may revive discussion of whether those states may wish to consider having their own heads of state, albeit remaining within the Commonwealth. If so, debate will focus on the historically developed republican models – presidential, semi-presidential and prime ministerial. The third model is notable for the separation of the roles of head of state and head of government. Yet the models may intersect, particularly where popular election is instituted for a ceremonial head of state leading to a heightened status. The ceremonial head of state will also retain key reserve powers and their role in proroguing the Parliament was recently considered in the UK Supreme Court decision of Miller v The Prime Minister [2019] UKSC 41. How monarchical reserve powers translate into powers of a republican head of state, and how such head of state is appointed, are key issues in the republican debate in Australia as exemplified in the republican models that have been postulated there and are here also considered.
Keywords
Introduction
Constitutional models used by nation states have evolved over time and it seems inevitable that some gradual evolution will continue. Such evolution can take place in both: (a) the choice of particular models by particular states and (b) the nature of the models themselves. More specifically, it may be that Australia and possibly some other realms within the Commonwealth of Nations, 1 will over the next few decades move away from the position where the UK Monarch acts as their legal (or de jure) head of state and move toward more nativist headships of state, as Barbados did in 2021. 2 There were indeed some predictions that the end of the reign of the popular Elizabeth II would give impetus for such change. 3 Yet in Australia at least, the passage of the Crown to the next generation does not appear, at least so far, to have seen any sudden significant change in public opinion on the constitutional role of the Monarchy. Despite this however, and notwithstanding the recent defeat in Australia of constitutional reform of a different nature (the indigenous ‘Voice’ proposal – see below) in 2023, it is still the case that the long-term trajectory and momentum of Australian nationhood seems more inclined toward complete independence, and symbolic political equality (as well as close friendship) with the former ‘mother country’ and its Crown. The current situation, by contrast, arguably maintains certain residual elements of symbolic or legal deference which may appear to be anomalous.
If Australia or other realms move away from the shared UK Monarchy, the modern debate (see below) suggests that it will be away from constitutional monarchy in general, and toward a republican style head of state. In that situation, it will become necessary to work out how the head of state is to be selected and what powers they will hold. In doing so, and in taking advantage of the likely substantial lead time before the issue is pursued again by government in Australia, it is submitted that it is highly useful to go back to first principles in exploring the three major democratic republican models that have emerged historically – presidential, semi-presidential and prime ministerial (parliamentary). 4 In doing so, a review of the nature of these systems is timely as is consideration of how and why the prime ministerial model can at times morph into the other forms, particularly where a popular mandate is used to select a formerly ceremonial non-executive head of state. A consideration of actual or postulated hybrids or evolutions of these models is also likely to be instructive.
This article therefore seeks to do several things. Firstly, it will look at the origins and rise of Parliamentary Monarchy in the United Kingdom as well as the main republican alternative models that have been pioneered in the United States, France and other key nations. This will include a description and review of the models through an historical and constitutional law framework.
Secondly the article will briefly note how some prime ministerial models have moved to become presidential models in France and elsewhere while noting the ongoing important role of the non-executive ceremonial head of state in Westminster democracies (including prime ministerial republics) which, despite lacking the full governmental role of an executive presidential head of state will still at time go beyond the merely ceremonial, and involve substantive powers. Recent events in the UK (and previously in Canada) involving the head of state's power to prorogue Parliament will be noted including the 2019 UK decision in Miller v The Prime Minister (‘Miller’). 5
Lastly, some aspects of the debate over models for a possible republican form of government in the Australian context will be noted as well as consideration of some of the proposed models themselves. This will also touch upon the question of how the power and choice of a republican head of state may also be affected by party political influences absent the perceived neutrality of an hereditary officer.
The impetus for a local De Jure head of state
The impetus for a local de jure head of state derives both negatively, from the anomaly of having a non-resident foreign-national as a country's head of state as well as positively, from the implied superiority of having a resident local national in the role. This ties in inevitably with the localist, nativist or patriotic view that recognising and promoting national and cultural identity is important (and this has certainly been one of the main arguments for a move to a local head of state in Australia 6 ). Yet it is also the case that such a nationalist sentiment may be somewhat less intellectually fashionable in increasingly pluralist Western nations where multiculturalism, cosmopolitanism and internationalism are strong contemporary sentiments. The two sentiments of nationalism and cosmopolitan internationalism may in fact be in some tension though it would be incorrect to say that they are polar opposites – both having importance and being generally well balanced in many modern nation states. 7
Of course, it might be argued that a monarchy shared by several nation states of diverse ethnic compositions might actually fit somewhat within a cosmopolitan internationalist paradigm. 8 In spite of this, it nevertheless may be considered somewhat doubtful how far the UK Monarchy is seen as such a form of internationalism capable of riding the current pluralist, globalist wave. Despite some recent attempts to embrace modernist multiculturalism 9 (as well as the embrace for some time of various other progressivist causes, particularly environmentalism) it still may be that the UK Monarchy is generally more identified with its aristocratic, traditionalist and hereditary nature rather than its internationalist or cosmopolitan aspect. To the extent the latter is emphasised – and there is no doubt that an element of this cosmopolitanism has long existed as part of the British Monarch's role – this might realistically be more relevant in strengthening the Monarchical claim for a strong leadership role in the Commonwealth rather than the role of a shared head of state. 10
What seems certain is that any move in Australia toward a local head of state, whilst still reasonably likely in the very long term, will be a very slow and gradual process. The waxing 11 and waning 12 of support for an Australian republic means that there is likely to be a considerable amount of time to give careful consideration to the options and constitutional models that may be available for an eventual change to a local de jure head of state in Australia.
The models to be considered in that regard are also most likely to be republican rather than alternative monarchist models. This is because, whilst occasional attempts have been made historically to create or invent local monarchies in the New World, these have generally been less than successful. 13 Further, the somewhat whimsical notion of creating an Australian head of state by ‘manufacturing’ an Australian monarchy (such as for instance by a minor British royal permanently relocating to Australia and taking Australian citizenship 14 ), may nevertheless have sufficient eccentricities to rule it out. 15 These include an obvious jarring with modernist sensibilities, and a lack of tradition, physical trappings and mystique that could act to outweigh or override disquietude at the idiosyncratic aspects of such an office. 16
It follows then that if Australia moves away from the shared UK Monarchy, it will not be toward a local constitutional monarchy but toward a republican head of state. It will them become necessary to work out how the head of state is to be selected and what powers they will hold. As indicated, there is clearly utility in going back to first principles in exploring the three major democratic republican models that have emerged historically – presidential, semi-presidential and parliamentary (prime ministerial) and the historical conditions leading to the creation of those models. 17 This will allow an informed debate about models that might be suitable in the Australian context and for other realms also.
The emergence of constitutional models
Parliamentary/Prime Ministerial Systems – the Westminster model
The English Westminster system developed out of a long historical process in which the monarch, as the original absolute ruler, gradually surrendered (or was divested of) legislative, judicial and real or factual (de facto) executive power (though not all de jure executive power). The beginnings of Parliament (and indeed the beginnings of the judiciary) had their origin in the King's consilium or curia which was essentially the general body of advisers to the Monarch – also referred to as the King's Court. 18 By a series of historical steps this curia or court developed into and was divided between judicial functions (which became law courts) and legislative functions (which became the Parliament), though the Monarch held onto substantial executive power well into the nineteenth century. In the present day, under the Westminster system, the Crown still holds onto a theoretical residue of that executive power, particularly in relation to the Crown prerogative (more generally exercisable through the Ministry and executive government) and in relation to the reserve powers (which is part of the prerogative usually exercised personally by the Monarch or their vice regal representative). 19
The Revolution of 1689 (in which the Parliament replaced James II with William of Orange and Mary Stuart on terms limiting monarchical power) and the resulting Bill of Rights of 1689 was pivotal in reversing the situation of monarchical leadership of the Parliament 20 ; thereafter the position was in effect that it was ‘parliament that led and the King that had to follow’. 21 As Stannard notes, it thus became clear in the seventeenth century that the last word on the composition of the Crown's ministers rested with Parliament and not with the Crown. 22 As a result parliament began to organise itself into political parties whose numerical strength in the Commons would then provide the leaders of same with an ability to pass legislation and relatedly have strong claims for ministerial posts.
Party organisation and hierarchy amongst these now powerful ministers also saw the need for a pre-eminent ‘first minister’ or ‘prime minister’ who would advise the monarch, the latter still holding nominal executive power. The Prime Minister thus became the leading person in the Cabinet and in the House of Commons.
23
Trevelyan describes the resulting cabinet system as delivering efficient government by a responsible and united executive in spite of that executive being subject to the will of a ‘debating assembly’ of over five hundred. They solved this problem, which many nations have found insoluble, not as was often contemplated in William III's reign, by excluding the Ministers from the Commons, but on the contrary by insisting that they should sit in and lead the Commons…
24
Republican Presidential systems – the Washington model
The American Presidential system developed after the thirteen British North American colonies initially established a series of ‘Continental Congresses’ to organise resistance to various British laws, culminating ultimately in a declaration of independence of those colonies from Great Britain and from its monarchy. 26
The newly independent nation operated for a time under Articles of Confederation under which decisions were made by state voting, but this proved ineffective, especially with requirements for a unanimous vote of the states. 27 Meanwhile the lack of a legal executive may have been somewhat disguised, at least in time of war, by de facto delegation of executive power to the nation's paramount military leader, George Washington. 28 Washington for a time filled the executive void created by the ending of recognition of the British Monarch, but it soon became clear that a new form of executive power or ‘magistracy’– largely without precedent – would be required. 29 As it came time for the drafting of a new constitution and a permanent legislature, new thinking on the conception of an elected and temporary monarch came to the fore.
It is useful to remember also that the British Monarch at this time was more powerful than they would later become. 30 The transfer and effective codification of that position's executive powers into a permanent written constitution in America saw their persistence and preservation whilst the independent powers of the UK monarch by comparison, would continue thereafter to decline. This process was aided by the gradual addition of a democratic mandate to the American executive. The President was appointed by the states which each appointed ‘electors’ to a ‘college’ (the number of electors being proportional to the size of their Congressional delegation) and the states were free to legislate on how they appointed their electors. 31 The states originally used various methods to choose those electors, 32 but by the 1820s, a popular vote had become the most common method of appointment of electors. 33 This increasing popular mandate was undoubtedly an important factor in a gradual increase in the power and prestige of the Presidency. 34 By contrast, the UK Monarch retained national prestige but saw their remaining political power seep away to the Prime Minister and the ministry.
The new American constitution of 1787 was also notable and ground breaking in its approach to checks and balances and to the separation of powers, taking seriously de Montesquieu's concerns about the potential for abuse of power and the conclusion that it was ‘necessary from the very nature of things that power should be a check to power’. 35 As well as a separate and independent judiciary, the constitution mandated a strict separation of the legislature from the executive. 36 The executive President's separation from the legislature would remain unquestionable yet the interaction of power between the branches remains a constant feature. 37
Republican Prime Ministerial republics – the ‘Dublin/New Delhi’ models
In the twentieth century in particular, many nations sought to establish or maintain Westminster style parliamentary systems with ceremonial heads of state. Some of these, such as Japan, had pre-existing monarchies and were therefore able to readily transplant a model that made use of their indigenous sovereign as head of state circumscribed by a Westminster style Parliamentary system. Thailand and Malaysia also made use of their pre-existing monarchies. 38
Others (including British Commonwealth countries such as Canada, Australia, Papua New Guinea and New Zealand) maintained the UK monarch as their absentee de jure head of state while appointing local governors-general to represent the monarch and act generally as de facto local heads of state in the physical absence of the monarch. 39 Some of these types of countries have then sought at various points to move to a republican head of state (often for nationalist reasons, such as Ireland in 1948 and India in 1950) yet have desired that such headship of state, while republican, remained (unlike the American model) as a ceremonial and non-executive office in the manner of monarchs or governors-general representing monarchs. This last category has also involved the associated goal of generally preserving the office of Prime Minister as head of government. 40
So-called ‘Westminster republics’ have sometimes struggled with determining an appropriate means of appointment for a head of state who lacks executive power. Appointment by a vote of the Parliament or legislature (such as in Israel), sometimes including involvement of constituent states (such as in federal or semi-federal systems in Germany, India and Italy) is a popular alternative while others have opted for a direct popular vote for their ceremonial heads of state (such as Austria, Ireland and Iceland). 41
India
India provides a model for a ceremonial head of state (Presidency) in a federal system elected by an electoral college comprised of members of both houses of the Indian Federal Parliament and members of the legislative assemblies of the Indian States. 42 Yet, despite its President lacking a direct popular mandate, India has somewhat ironically had arguably more executive rivalry between its indirectly elected President and its Prime Minister than has occurred under Ireland's direct election model for president (see below). 43 The discussion about the role in India sometimes took the form of a debate between a politically endorsed candidate elected by the electoral college who must nevertheless completely follow the Prime Minister's advice, and a more radically independent head of state who is not endorsed by the major parties and is an ‘independent organ of state’ taking ‘objective, independent decisions’, irrespective of ministerial advice. 44
In 1950 the first Indian President, Dr Rajendra Prasad, on his accession, posed that very question to the first Prime Minister Jawaharlal Nehru, asking whether the Indian Constitution contemplated the President acting independently of the advice of Ministers in any situation. 45 The President also raised doubts about the wholesale importation of conventions of the British Constitution if they did not appear in the text of the Indian Constitution. 46 Both of these suggestions were referred by the Prime Minister to the Attorney General who came back strongly with the view that the Indian President was subject to the same conventions as the British King and must follow ministerial advice. 47
The notion of the President acting on the advice of ministers and those ministers being from and responsible to the legislature (the system known as ‘responsible government’ 48 ) would subsequently be confirmed in a number of decisions of the Indian Supreme Court. These recognised that (a) the President was formal or constitutional head of the executive but that real executive power was vested in the ministers of state 49 ; (b) the Constitution must be understood in light of the conventions prevalent in the United Kingdom and other countries following a similar system of responsible government 50 ; (c) the President should exercise his or her powers on advice save for the particular exceptional situations of choosing a Prime Minister (where the consideration was choosing someone commanding a majority in the lower House), dismissing a Prime Minister (who had lost majority support) and dissolving the House. 51
The roles of President and Prime Minister would also be tested in India by the controversial advice of the Prime Minister Indira Gandhi to President Fakhruddin Ali Ahmed in 1975 to sign a Proclamation of a State of Emergency on the grounds of ‘internal disturbance’ (as provided for by Article 352 of the Indian Constitution). 52 The President complied and this saw suspension of civil liberties, press censorship, arrests and forced detentions. 53 In the course of these events there would subsequently also be constitutional amendments (of Article 74) in 1976 by Gandhi's government codifying the notion that the President must act on advice of the Council of Ministers headed by the Prime Minister 54 but later further additions noting that the President had a power to require the Council of Ministers to reconsider their advice to the President who would then ‘act in accordance with the advice after such reconsideration’. 55
Though the Indian political system tends to ultimately deliver Presidents of the same political stamp as the Prime Minister's governing party (which has most often been the Congress Party) there are overlaps and periods of ‘cohabitation’ between a President and Prime Minister of different political persuasion. 56 Indira Gandhi noted in 1981 that while the British Queen was completely non-political, in India the President generally belonged to a political party and at that time her President (N Sanjiva Reddy) belonged to an opposition party. 57
In terms of constitutional design, the Indian example appears to demonstrate that the Parliamentary based electoral college model does not completely remove the influence of political parties or the possibility or even likelihood that the President will have political backing and loyalties. On the other hand, this has not necessarily meant that the Presidency will act as a partisan office – only that there may be some friction, particularly when there is ‘cohabitation’. 58
Ireland
Ireland provides a model for an elected ceremonial head of state (a President, known also as the Uachtarán). The potential for popular election to enhance the power of a ceremonial Presidency at the expense of the Parliament and Prime Minister (as in France) is discussed below. With some exceptions, this power shift has not occurred to any great degree in Ireland's case, even though the Presidency has mostly gone to politicians. This may be because, historically, the major political parties in Ireland tended to endorse retired politicians – party ‘old timers’ who were at the end of long political careers. 59
It has also been suggested that, despite popular election, the ability of the politicians to vet the nominations and to sometimes agree on a single candidate has also kept the Irish Presidency to a low profile. 60 Under the Irish Constitution, nomination requires support of 20 existing members of the Parliament (Oireachtas) or of at least four administrative County councils or County Borough councils. 61 This means that considerable support from established politicians and parties is required to be nominated. 62
Whilst this has, on the majority of occasions, led to a straight contest between the candidates of the major parties Fianna Fáil and Fine Gael (plus Labour and increasingly Sinn Fein), a somewhat counter-intuitive result is that it has also seen a number of occasions of agreement on a single nomination, nullifying the need for a popular vote (this has occurred on six occasions out of thirteen presidential terms since 1938, most commonly where an existing President has stood for a second term 63 ). This has meant that presidential elections have not been regular. It has been suggested that this infrequency may have reduced politicisation and the possibility of presidential elections becoming an opportunity to express discontent with the incumbent government. 64
Yet in the 1990s, the popular President Mary Robinson departed somewhat from the traditionally minimalist ceremonialism of the Irish Presidency. She ran in 1990 as an independent (albeit with Labour support) against the governing Fianna Fáil party candidate and promised to make the presidential role a more active one. 65 After coming second, behind the government candidate, she won the Presidency on distribution of preferences of the third placed Fine Gael candidate (see discussion of Irish political parties in Part III below). 66 Her tenure required ‘cohabitation’ with non-Labour governments led by, respectively, Fianna Fáil and Fine Gael Prime Ministers. Robinson had an extremely high level of personal popularity, 67 and is widely acknowledged as having changed the Presidency into a more active and visible office. 68 She was also more inclined than her predecessors to express her views publicly, causing some friction between her and the elected Fianna Fáil Prime Minister and government. 69
After Robinson's tenure, the Irish Presidency reverted somewhat to its more traditional and ceremonial role with the election of Mary McAleese as an endorsed candidate of the governing Fianna Fáil party in 1997. 70 Nevertheless, her successor, Michael Higgins, who was elected in 2011, was, like Robinson, a candidate of the Labour Party (though promising to be politically neutral 71 ) and thus had to cohabit with the Fine Gael Party Prime Ministers from 2011 to 2020 and after 2022 and a Fianna Fáil Prime Minister from 2020 to 2022.
Notwithstanding this experience of the Irish republic, the proclivity of political hierarchies for rational self-interest and power maximisation has long been noted and this may imply some contradictions within the model of a prime ministerial republic with an elected but merely ceremonial head of state. 72 In particular, the empowering effect of a direct democratic mandate means that Westminster republics with popularly elected heads of state may experience a gravitational attraction toward another model. Under this model the head of state has an enhanced role. This is exemplified by the last category of constitutional model, which is the semi-presidential republic, which will now be discussed.
Republican semi-presidential systems – the Paris model
The most well-known democratic model for the semi-presidential system is the modern French model. 73
France's first governmental constitution came in 1793 following the French Revolution, however this was never implemented due to Napoleon Bonaparte's imperial ambitions. 74 The Second French Republic followed the 1848 revolution that overthrew King Louis Philippe but was also terminated by similar imperial ambitions of Louis-Napoleon in 1851. 75 The Third Republic arose from the defeat of France by the Prussians in 1870 and included a President elected by a joint sitting of the Assembly and Senate. 76 The Fourth French Republic, established under the post-World War Two constitution of 1946 was designed as a parliamentary or prime ministerial republic. 77 Yet the lack of a clear two party system and fragmented political groupings meant that the Prime Ministership was a weak office, with successive and short lived coalitions and the lack of a single party that could dominate the French Assembly. 78
The Fifth French Republic established in 1958 was a response to the inadequacies of the Fourth Republic. It was also said to reflect Charles De Gaulle's idea of an elevated role for the Presidency, his disdain for party politics and his conception that the Presidency could be above this. 79 The initial model involved indirect election by a large electoral college. 80
In 1962 after a successful referendum on the question, France moved from an electoral college to a popular vote for the President. The formal powers of the then ceremonial President (which admittedly had been somewhat enhanced in 1958 81 ) were not further altered as a result of the 1962 referendum. 82 Yet, it has been argued and appears to be borne out by subsequent events, that the change to a popular vote, while giving the President no new specific powers did afford the office important new overall power, coming from a people's mandate at least equal to the mandate given to the National Assembly. 83 This was said to have upset, in favour of the President, the balance set out in the 1958 constitution with the constitutional requirement that the President must act with the agreement and on the initiative of the Prime Minister subsequently evolving into the practice that ministerial counter-signatures to Presidential action were a formality. 84 This of course is the inverse position to Westminster practice where it is the head of state's signature that is the formality and the real impetus for action comes from the Prime Minister and cabinet.
Whether this transition from a prime ministerial republic to a semi-presidential system would have occurred without the unique historical figure and powerful personality of Charles De Gaulle is a point for historical-political debate. It is however clear that France today has a Prime Minister accountable to parliament and a President not accountable to Parliament yet accountable to the people. The Prime Minister is still the head of government and the President is the head of state; however, the President also has important executive powers. 85 Elections are held simultaneously which is said to reduce the chances of opposing political parties gaining control of the Presidency and the Assembly 86 – known as ‘cohabitation’ when it does occur. 87
The head of state's role as a defining aspect of the different models and the relationship between the prime minister and head of state
‘Morphing’ of the head of state role through adding popular election
As has been seen, the head of state occupies a significant but diminished role in prime ministerial systems, a role of greater significance in semi-presidential systems and a pivotal role (as head of state and head of government) in presidential systems.
Further, the effect of implementing a popular vote to select the head of state has been noted in relation to the French model (and also the US model). That effect appears to be to raise the status of the initially ceremonial head of state in the Fifth Republic relative to a prime minister who is drawn from the legislature. Even in a fully presidential model it also appears to solidify the status of and lift the prestige of an existing executive president (as occurred in the US in the nineteenth century as discussed above). The question arises as to whether election of a ceremonial head of state in a prime ministerial model is a fundamental change that can actually upset the ‘stable orbit’ of the prime ministerial model by creating a ‘gravitational attraction’ toward another model – being the semi-presidential or presidential model. The example of France has been noted and it is the case that some other countries, though not all, have, when implementing a popular vote for the head of state, seen an evolution away from a prime ministerial model toward a semi-presidential or presidential model. Further, despite the existence of an additional popular vote for such a presidential office, it is notable that such a development has not always been associated with perceptions of heightened democracy. 88
It would of course be dangerous to read too much into such developments as each country is different. In some cases a move to a popular vote has been an improvement on past less democratic practice. This appears to have been the case in South Korea's move to a popularly elected presidency in 1987. 89 On the other hand, the gradual move from a prime ministerial to a presidential system in Turkey has been identified with greater authoritarianism 90 and such a move in Poland in 1997 is also said to have some time later been followed by a ‘significant decline in the level of democracy’ in that country (at least since 2015). Sri Lanka too provides an example of a move from a prime ministerial constitution to a semi-presidential constitution in 1978, both systems of which have been criticised (the first apparently said to suffer from an inadequately independent judiciary and the second suffering from an ‘overmighty’ executive presidency 91 ).
Yet the example of Ireland as discussed above appears to indicate that popular election of a ceremonial head of state will not necessarily morph that role into an executive or head-of-government role, though the presidency of Mary Robinson did elevate the profile of that office for a time. Austria too has a longstanding ceremonial head of state (president) and the implementation of a popular vote for that position from 1951 has not seen any change to that role nor to the role of Prime Minister who has continued to act as the effective head of government 92 (indeed the only real perturbation to the Austrian head of state's office in the post war period was the presidential tenure of Kurt Waldheim due to various accusations in relation to his involvement in the German war effort 93 ).
Ceremonial heads of state, reserve powers and the prorogation role
Though ceremonial, a non-executive head of state in a prime ministerial system retains certain key roles in the ability to exercise reserve powers. The latter are powers that can exercised without ministerial advice (and even contrary to ministerial advice) being the right to appoint and remove the Prime Minister, dissolve the House of Representatives or dissolve both houses. 94 They are also said to include the power to refuse to dissolve parliament. 95 These powers are not frequently used, but when they are, it is often in the context of a wider governmental crisis. 96 The reserve power to remove a prime minister or premier has been used only twice in Australia: by New South Wales Governor Sir Philip Game in 1932 to remove New South Wales premier Jack Lang and by Governor-General Sir John Kerr in 1975 to dismiss Prime Minister Gough Whitlam. The grounds for removal of the premier were the Governor's view that the premier and his government had acted illegally in issuing a circular to state officers designed to make them defy federal laws that the NSW government honour various debt commitments at the height of the Great Depression. Game took the view that the circular sought to require the State Crown to break the law. 97 The grounds for dismissal of Prime Minister Whitlam were that his government could not guarantee funding for the running of government because supply bills had been blocked in the Senate. 98
The power to prorogue Parliament – terminate a session of the Parliament and suspend it for a period, though without actual dissolution of the Parliament nor the holding of an election – has been seen more as a power requiring the advice of the Prime Minister though in recent times, the judiciary has become involved in that question. Thus, in the 2019 UK Supreme Court decision of Miller v The Prime Minister (‘Miller’) 99 the Court effectively quashed the Queen's prorogation of Parliament which had been made on the advice of the Prime Minister. 100 The decision arose during the controversial period of implementation of the Brexit referendum outcome. 101 One aspect of the decision that was notable was the court involving itself in what might once have been seen as matters that were political and/or matters of constitutional convention and non-justiciable. The latter was the view of the High Court of England and Wales however in the UK Supreme Court, the argument that the court's action infringed the separation of powers was met with the somewhat circular counter-argument that a finding of justiciability meant that there was no offending of the separation of powers – a view accepted by the court. 102 In fact, the Court considered that the legal limits of the prerogative power to prorogue were within the power of the Court to determine. 103
The Court went on to declare that the advice to prorogue was unlawful.
104
This made the advice null and of no effect.
105
The Court said that the Order in Council of the Queen and Privy Council to prorogue (based on that advice) should therefore be quashed as being null and of no effect.
106
Lastly the Court went on to make a declaration that the effect of all this was that Parliament was not in fact prorogued.
107
The illegality of the Prime Minister's advice was found to be in advising the Queen to prorogue Parliament for such a length of time (5 weeks) that ‘the prorogation [had] the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive’.
108
The Court noted: It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her majesty to prorogue Parliament for five weeks.
109
From the perspective of this article, Miller highlights a few interesting issues. The actions of the head of state and head of government in that case seem to have been fairly seamless with the Queen dutifully following her Prime Minister's advice to prorogue. Her doing so was not questioned or criticised in the case, 112 with the issue in dispute being, rather, whether the advice of the Prime Minister which the Queen followed was ‘lawful’. It may however be an interesting question whether the Monarch either: (a) can have; (b) should have; or (c) has, any obligation to, question the lawfulness of advice.
Twomey has dealt with this type of question at some length, noting that it raises three matters of constitutional principle that may come into conflict. 113 These are the principle that the head of state must act on ministers’ advice (the responsible government principle), that she must obey the law (the rule of law principle) and that determination of what is lawful is for the judiciary and not the executive (the separation of powers principle). After reviewing practice in five countries (including some state or provincial executives within federal states), Twomey's conclusion (written in 2018 before the UK Supreme Court decision) is that in some circumstances the head of state may justifiably refuse to act upon ministerial advice where to do so would involve illegality or breach of the Constitution. 114 Whether the head of state should act on the advice and leave questions of legality to the courts or should refuse to participate in illegality is said to depend very much on the particular circumstances. 115
An issue as to advice to the head of state to prorogue also arose in Canada in 2008 to 2009. 116 The leader of a recently elected minority government Prime Minister Stephen Harper faced a proposed no confidence motion and possible further election, only 6 weeks after the previous election. After discussions with the Governor General Michaëlle Jean, Prime Minister Harper advised the Governor-General in December 2008 to prorogue Parliament until 26 January 2009. Various views had been put as to the proper course for the Governor-General, including dissolving Parliament, refusing to dissolve Parliament while inviting the opposition to form a government and prorogation for various periods ranging from a few weeks to a year. In due course, the Governor-General accepted the Prime Minister's advice to prorogue until 26 January. The crisis was thereafter resolved through opposition parties relenting on their no confidence strategy and passing the government's budget. 117
In relation to the republic debate, clearly the same general issues could have arisen for a theoretical republican ceremonial head of state in Canada. In that situation, save for certain questions about confidence in their own tenure (given that a governor-general might perhaps be more readily removed than a republican head of state, especially one with a popular mandate) it is not entirely clear that such republican officer would necessarily have treated this issue differently in any particular aspect.
I will now turn to the Australian discussion of headships of state with a focus on the debate over possible republican models in this country.
The Australian debate on republican models
In this last section I will give some consideration to the debate that was had in Australia in the 1990s and has been somewhat revived in recent times in relation to how the country might transition to a republican model of constitutional government. Before doing so, it is relevant to note the defeat of the recent constitutional reform proposal for an indigenous ‘Voice to Parliament’. The lessons of this exercise should be noted. The proposed wording was released by the Prime Minister in 2022 and was met by a level of support but also a number of questions and criticisms about the wording of the amendment. 118 Though there had been a long process of formulation of the idea there was then no subsequent consultative constitutional convention (as is common for referendum proposals) to deal with these questions. This was then mirrored by the failure of the major parties to engage and negotiate with each other on the wording of the proposed amendment, with the result that any chance of bipartisanship quickly withered, and the political parties locked themselves into fairly inflexible postures. The clear lessons of Australian constitutional referendum history – that a proposal without bipartisan support would almost certainly fail – were strangely ignored. The popular campaign then ensued, where both sides accused each other of misinformation and occasional scare mongering with the inevitable result that cautious Australian voters opted for the status quo, and the proposal was fairly convincingly defeated. The lesson has not been lost on the Australian Republic Movement (ARM), whose new co-chairwoman Nova Peris has recently warned that any future referendum on an Australian republic would fail without bipartisan support. 119
As noted, the defeat of the Voice referendum means that previous plans of the Labor government to hold a republic referendum if it wins a second term of office 120 now appear to be shelved. 121 As noted however, there may be at least one positive aspect of this in the removal of deadlines that may have impeded a more fulsome, rigorous and exhaustive debate and consideration of the issue and how to achieve the best republican model.
The Australian republican question, like that in any Commonwealth realm, largely boils down to the question of who replaces the UK Monarch as head of state and how that person is appointed. One of the key issues in the Australian context has been the question of the reserve powers of a republican head of state. This is so particularly given the 1975 action by the Australian vice-regal representative, the Governor-General, to remove the commission of a Prime Minister (who still held the confidence of the lower house), dissolve Parliament and call an election. This followed the deferral of money bills (‘supply’) by the opposition controlled Senate. This was widely considered at the time to be a ‘constitutional crisis’. 122
I will now look briefly at some of the Australian republican models and debate. The models can be somewhat categorised on a spectrum between relatively pure ‘popular election’ at one end and ‘appointment’ systems or mechanisms at the other. Given that leading constitutional lawyers in Australia have lamented the occasional binary nature of the debate between these two extremes, 123 I have also taken note of some of the more recently proposed hybrid models which fall into the middle.
Before reviewing some of the main models it is useful to consider briefly two issues, being why a head of state remains a necessary office in a prime ministerial republic at all, as well as conceptual issues surrounding appointment to the office of head of state.
Why a head of state remains desirable in a prime ministerial system and the issue of ‘appointors’ generally
Appointment of prime minister
A view sometimes expressed is that the head of state is unnecessary and superfluous given that government is adequately led by the Prime Minister. 124 That view sometimes takes the notion of the fused head of state and government in the US system and tries to transpose such fusion onto the Westminster model. Without going into too much detail, the view is problematic for a number of reasons.
Firstly, it gives insufficient weight to the historical development of the Westminster model where absolute power originally flowed from the Monarch and was gradually paired back by Parliament and the ministry (executive) as well as the courts but where a residue of power still remains with the Monarchical head of state (in the prerogative and reserve powers). A republican head of state is likely to retain some of these as well as seeking to personify ‘the state’ as separate from the politicised executive government. 125
Secondly, it gives no clear answer to the question of who has the power to say who will be Prime Minister and who can commission that Prime Minister. Whilst it may sound simple to say that the majority leader can simply come forward, this may actually be quite complicated, particularly if there are multiple parties, no absolute majority and overall support is unclear. 126 Thus, though absent the head of state, it might be suggested that ‘the Parliament’ can simply appoint the Prime Minister, the larger an appointing ‘group’, the more unwieldly and divided it may become. 127 The further issue of a potential clash of executive and judicial power on this question (which effectively occurred in Miller) has also recently played out in Papua New Guinea which for a time effectively had two Prime Ministers, one appointed through the Parliament and Governor General and one declared by the Supreme Court. 128 These sorts of issues also arise a fortiori when there is a forced removal of the commission of a Prime Minister by the head of state which occurred in Australia in 1975. 129 A head of state at least resolves decisively the question of who has the appointment and removal power, even if their decisions attract criticism.
Appointment of head of state
On the issue of ‘appointers’ generally it can be noted that a similar ‘appointer’ (and potentially a ‘remover’) issue also arises with a republican headship of state itself. While an hereditary monarch generally needs no appointment, a non-hereditary periodic head of state does. 130 This appointment is sometimes done by an electoral college which itself may be directly or indirectly elected (USA and India respectively) with other officers playing a role (such as the role of the US Chief Justice in swearing in a President). Alternately the appointer may be ‘the voters generally’ in a popular election with the Parliament prescribing laws for declaration of the winner by electoral authorities, though this may be subject to delay if the latter's process is challenged in the courts. 131 Certainly if swift action is needed (such as removal) there is an argument that very large bodies with appointer and removal powers may be cumbersome (such as Parliaments in an impeachment or similar process). Courts too may not act swiftly and there are clearly dangers in involving them in this somewhat political process. 132 Balanced against this consideration though, is some need for a fair process, particularly in a possible removal.
The head of state appointment issue certainly comes up in the models that have been suggested in the Australian republican debate which I shall now review.
Head of state appointment models
The McGarvie model
The McGarvie model proposed in the 1990s was a model for ‘ultra-minimalist’ change to an Australian republic developed by former Victorian State Governor Richard McGarvie. 133 Its minimalism was based on the fact that it made virtually no changes to the constitutional role of Governor-General and focused instead on the replacement of the Monarch as appointer, with an Australian appointment body.
Under this model, the Monarch's role in appointment and dismissal of the Governor-General/head of state would be assumed by a three-member Constitutional Council which must follow the Prime Minister's advice in such appointment or dismissal. 134 The Constitutional Council would have three members comprised of the most recently retired surviving former Governors-General. 135 The membership of the Council was sometimes described as being of ‘eminent persons’ which is a term that may have affected its popularity and led to criticisms of ‘elitism’. 136 Yet the model solved many of the problems of change and had virtues in maintaining an ‘appointer’ role (see above) given to a small tightly focused body with a single function. It thus minimised uncertain change.
Under the McGarvie model there is no change in the role of political parties – the Prime Minister chooses and advises appointment of a candidate for head of state which choice may require tacit acceptance of his or her Parliamentary political party. The Prime Minister is in practice also likely to avoid a candidate that is strongly opposed by the main opposition parties, given the power of opposition parties to make cause with the Press and others to launch a campaign against a candidate who is seen as unacceptable. 137
Morris ultra-minimalist model
Ultra-minimalism and the idea of avoiding the significant change of a direct election approach has also been promoted by Dr Shireen Morris who raises a number of good arguments for maintaining as much of the traditional current constitutional arrangement as possible. 138 In that regard she notes that the Governor-General is appointed and removed by the Monarch on the advice of the Prime Minister, and then proposes that the Prime Minister be given the direct power to so appoint and dismiss, removing the Monarch as ‘symbolic go-between’. 139
On the question of removal, the effect of this might be that both Prime Minister and Governor-General had power to dismiss each other in the event of misconduct. 140 This might suggest a mutual ‘checking’, however there is the problem that in any looming confrontation between them, there may be a temptation for both to try to dismiss the other before they were dismissed. 141 In similar vein, the procedure proposed at the Australian Republic Convention in the 1990s that the Prime Minister should have power to dismiss a republican head of state was criticised by former Australian High Court Justice Harry Gibbs who noted while avoiding dismissal of a Prime Minister by the head of state, ‘chaos’ could ensue thereafter. It was said that the measure failed to strike the necessary balance between the offices of President and Prime Minister, greatly strengthening the position of the latter at the expense of the former. 142
It is also not clear whether giving the Prime Minister the de jure power to appoint and remove what in some senses is the personification of the former ‘Crown’ would raise conceptual issues and ambiguities in relation to sources of power. 143 On the other hand, modern Parliamentary supremacy and sovereignty might suggest that Parliament does have the power to appoint the ‘sovereign’ head of state even though in earlier times it did not. 144
The Morris model has similar implications for political parties as the McGarvie model. The Prime Minister's selection and appointment of a candidate for head of state will usually require tacit acceptance of the governing parliamentary party and avoidance of a candidate strongly opposed by the main opposition parties.
The Australian republican movement model proposed at the 1999 referendum
The model presented to voters at the Australian republic referendum in 1999 was based heavily upon a model developed by Professor George Winterton.
145
It provided for constitutional provisions as follows: After considering the report of a committee, established and operating as the Parliament provides, to invite and consider nominations for appointment as President, the Prime Minister may, in a joint sitting of members of the Senate and the House of Representatives, move that a named Australian citizen be chosen as the President. If the Prime Minister's motion is seconded by the Leader of the Opposition in the House of Representatives and affirmed by a two thirds majority of the members of the Senate and the House of Representatives, the named Australian citizen is chosen as the President.
146
Save for replacing the Governor-General (and the Monarch) with a President, the proposal did not alter the position that executive power was vested in the office of that person (as advised by the Federal Executive Council of Ministers). 150 Under this model, powers equivalent to the Royal prerogative (which are nowadays exercised by the executive generally 151 ) were expressly stated as continuing to be enjoyed by the new President. 152
Mustering such a two-thirds majority of a joint sitting would be likely to require the two main political parties (or at least the governing party and smaller parties or sufficient MPs from the Opposition Party) to agree on the candidate. This would generally mean avoidance of a polarising candidate.
Intermediate/hybrid models
Given the divide between the two, a number of contributions have been made to try to bridge the chasm between appointment models lacking any popular vote, and pure direct popular poll models.
Copernican models
The idea of a ‘Copernican’ model is somewhat minimalist in retaining an appointed local de facto head of state (similar to Governors-General) but also involves popular election of a person who then acts to appoint that officer. 153 Such a model replaces the Monarch as appointor with a popularly elected Australian citizen who then appoints a ‘Governor-General’ in accordance with, and based on the advice of the Prime Minister. That ‘Governor-General’ then operates in the same manner as the existing Governor-General so that, like the McGarvie model, the model largely bypasses the issue of uncertainty of role or codification of reserve powers 154 (as well as requiring fewer actual amendments to the wording of the Constitution).
There is nevertheless some uncertainty about the role of the periodically elected appointor who has a democratic mandate but has only one function – to appoint the ‘Governor-General’ on the advice of the Prime Minister. 155 The idea that such an officer, holding a democratic mandate, would never seek to exercise at least some de facto power seems somewhat unlikely. Further, while the model does not contemplate political endorsement of candidates for ‘appointer’ necessarily, it is more than likely that the two major national political parties would eventually want to endorse candidates unless this is specifically prohibited. 156 This may mean a political election to decide who will be this ‘appointer’.
The Australian Republic Movement 2022 Model
Following the defeat of its 1999 proposed model, the ARM, after a long hiatus, released a new republic model in 2022. 157 The model appears to owe something to a model proposed in 2018 by academics Benjamin Jones and Paul Pickering as well some inspiration from the Irish system. 158 Under this model, a single candidate may be nominated by each of the six state and two territory parliaments plus three candidates nominated by the federal Parliament. These (up to eleven) candidates then go to a popular national vote. Similarly to Copernican models, this model does not contemplate political endorsement necessarily, but does not prevent it, so again it is more than likely that the major national parties would eventually want to endorse candidates unless this was specifically prohibited. The Jones-Pickering model had required two-thirds support from the parliaments which may have increased the chances of bipartisan endorsements, however this was not retained in the ARM model (partly perhaps because this may require state legislation or state constitutional amendment). The model did contemplate that less than eleven candidates might be nominated 159 and even that there might be political agreement where only one candidate was nominated (as occurs occasionally in Ireland, though usually only for re-election of an existing president for a second term, however unlike Ireland an election would still be required to confirm the appointment under the model). 160 Clearly the model might also see the major national political parties ultimately endorse only one main candidate each for the election. 161
In the model, single candidates are produced from state and territory Parliaments so that these nominations may well reflect the political colour of those Parliaments as either left or right controlled (though presumably nominations will have to get through both houses in the bicameral legislatures). There is also the possibility that some states might break from national political organisation to nominate parochial ‘favoured sons or daughters’. Meanwhile the national Parliament can select three candidates which may suggest a candidate supported by each of the dominant left and right parties plus a candidate from the largest minor party. 162 While not problematic under ‘first past the post’ voting this may be problematic under a preferential voting system as it would give the third largest party a significant say in its ability to direct its voters’ preferences to one of the other two parties. 163
Fifty-Fifty model
The ‘Fifty-Fifty’ idea proposes election of the head of state through a combination of a national popular vote and a vote of a joint sitting of both houses of parliament. 164 The outcome of the twin polls would count equally (50% each) toward the election of a head of state.
The idea of this model is to ‘create an acceptable compromise between parliamentary appointment and direct election, preserving substantial input from parliament whilst giving the voters a say as well’. 165 Parliament would set the scene with an initial vote while the voters would somewhat curb parliament by having a final say. The model is also said to diffuse the ‘alternative power centre’ problem of an elected head of state by moderating the ‘popular’ mandate of the head of state and combining this with a parliamentary mandate. 166 In this way, it is argued that the head of state may be less likely to evolve into a rival to parliament where he or she derives half their legitimacy from a parliamentary vote. 167
In a two-candidate race, a candidate winning 50% of the popular vote and 70% of the parliamentary vote would receive 60% overall and win.
Fifty-fifty clearly also appears to allow politically endorsed candidates for the role of head of state and this would play out in the popular vote and through the parties represented in the Parliament.
Tri-partisan endorsement model
The Tri-partisan Endorsement model derived originally from a notion expressed by Professor George Winterton in 2001 that Parliament could endorse a single candidate to run in a popular vote. 168 Professor Winterton noted that a single politically neutral candidate for head of state would likely fit better into Australia's Westminster system. 169 Further, if able to obtain the support of conflicting parties, the person could thereby be a unifying force or symbol. 170
The original Winterton proposal required a two-thirds majority of parliament choosing a single candidate for a popular election. 171 Tri-partisan endorsement, suggested in 2018, 172 focused on agreement by the leaders of the three largest political parties represented in the Australian parliament (calculated on a Joint Sitting basis) who must unanimously nominate a candidate for head of state (the tri-partisan candidate) to be jointly endorsed by them (backed by their political groupings). 173 Their respective political parties would be ‘brought into the constitutional tent’ 174 with provisions prohibiting their three political parties from then supporting a candidate other than their tri-partisan candidate.
The model is somewhat novel and explores the whole notion of whether or how a popular election could be apolitical. In that regard it is not clear how far the three largest political parties would in reality support a model that obliges them to agree on a candidate. Yet as noted in Part II above, the Irish direct popular election model has delivered a somewhat similar outcome in six out of fourteen Irish Presidential elections – agreeing on a consensus candidate so that no election was necessary. 175 Such a political ‘deal’ can occur in Ireland under their system because nomination of candidates is effectively limited to the major parties 176 ; however, Tri-partisan Endorsement would still permit candidates outside the three main parties to run.
Direct popular election models – the Gallop model
The main pure direct popular election model in Australia is that put forward by academic and former Western Australian State Premier Professor Geoff Gallop. His model, which was the direct election model voted on at the 1998 Australian Constitutional Convention provided for a two-thirds vote of a joint sitting of Federal parliament to nominate three candidates who would then be voted on in a nationwide popular election. 177 The winner of the popular vote would be a President (head of state) with partly codified reserve powers and other powers exercised on ministerial advice. 178 The President would hold office for two terms of the House of Representatives (which has maximum terms of 3 years) and could be dismissed by an absolute majority of the House of Representatives on the grounds of stated misbehaviour or incapacity or behaviour inconsistent with the office. 179
It was observed by Professor Winterton that the three candidates chosen to run under this model would likely be the nominees of the three largest political parties in (the combined two houses of) the federal Parliament. 180
Conclusion
Political and constitutional models evolve and, in the near future, the issue of Australia and possibly other Commonwealth realms moving from constitutional monarchies under the UK Crown to their own heads of state as possible republics is likely to arise again. If that occurs, then debate may focus on the three main republican systems – presidential, semi-presidential and parliamentary/prime ministerial – as well as extant or postulated hybrids or variations on these basic models. Those models generally first developed respectively in the United States, France and a number of countries including former British dominions (notably Ireland/India).
Those models create republican heads of state ranging between essentially ceremonial, on the Westminster model, through to heads of state who are also heads of government with full executive powers (on the Washington model). In between are hybrid arrangements such as the French model where a president and prime minister both share a measure of power and indeed, it can be seen from that country that a ceremonial head of state can evolve into a more active executive role, particularly where appointment comes from a popular mandate.
Yet even where the headship of state is a largely ceremonial role, as is the modern Westminster tradition, that role remains important, particularly in the reserve powers and the power of prorogation of Parliament. 181 The latter was illustrated in the recent controversy and Supreme Court decision of Miller 182 in the United Kingdom where the Prime Minister wished Parliament to be prorogued and advised the head of state to do so during the Brexit debate – advice that was subsequently declared unlawful by the Supreme Court (with a somewhat similar controversy around prorogation also arising in Canada in recent times).
The conceptual and practical complexity of proposals and models for constitutional reform has recently been illustrated in Australia where the voting down of a constitutional reform proposal in the form of an indigenous Voice to Parliament has shown the difficulty of achieving constitutional change. That outcome has also seemingly seen the postponement of plans to move forward on the republic issue which had somewhat revived in recent years with some discussion of models for a republican head of state. Yet though the republican issue has been deferred, it is unlikely to completely disappear and it may actually be that a long-term benefit for the republican side can actually be salvaged from the hiatus. This will be the provision of more time to fulsomely consider republican models, which is more likely to ultimately produce the outcome of a considered and judicious model that may one day garner bipartisan support – without which there will almost certainly be no change. The return to first principles in looking at the historic models, as set out in this article, will hopefully be a small contribution to that process.
Footnotes
Acknowledgements
The author thanks the anonymous referees for their helpful comments
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.
