The Sixth Pillar: Federation

This is an edited version of a speech Professor Flint delivered to the Order of Australia Association. The themes here are developed in Give Us Back Our Country, How to Make the Politicians Accountable … on Every Day, of Every Month, of Every Year, by David Flint and Jai Martinkovits (Connor Court).

first fleet IIIn addressing you as “ladies and gentlemen”, it appears I am in breach of the instructions given to schoolchildren under the Safe Schools program. This decrees that phrases such as “ladies and gentlemen” and “boys and girls” should be avoided.

That is what is being taught or proposed to be taught to our children. Now, let us consider what is no longer being taught to our children—our heritage.

In 2006, a report about the teaching of history in Australian schools found that three-quarters of school students surveyed did not know why we celebrated Australia Day. The New South Wales Minister for Education argued that, at least in that state, the teaching of history was of the requisite standard. Asked by a radio presenter why we celebrate Australia Day, the minister replied, “Because that’s the day when it became a nation, the day the states joined together.”

Whether or not students (and a minister of the Crown) know why we celebrate Australia Day, they have been taught little about that crucial golden thread that comes to us through the Magna Carta, the Glorious Revolution, settlement and what has transpired since. Even the story of Anzac is under attack, according to Mervyn F. Bendle’s account of what he describes as “the history war on Australia’s national identity”.

The result is that our children know little about our heritage. The picture appears just as bleak in significant areas of tertiary education, where free speech is under attack, bureaucracy is dominant, and too many students are admitted to courses for which they are unprepared and which are inappropriate for their aspirations.

Yet record sums of money are being poured into education, and students are amassing substantial debt even before they work out how they will acquire the house which was once considered the birthright of all Australians. Add to that the fact that they are the generation who will pay the increasing interest on increasing government debt and will also be liable for the eventual repayment of that debt.

Australia’s youth are being denied the opportunity to know, understand and appreciate their heritage. But that is not all. This failure in educational administration is, I believe, but another example of a serious decline in the quality of the governance of this country.

Let us examine the failure to educate our children about our heritage. Young people are not being given the opportunity to understand and learn from those things which have made Australia such an exceptional nation.

Why has Australia been so successful? Are Australians racially superior? Is it our weather? Is it geographical? Or is it that we are endowed with such rich natural resources that we could never fail?

The latest research, such as that by MIT professor Daron Acemoglu, Harvard professor James A. Robinson, and Harvard and Oxford professor Niall Ferguson, concludes that not one of these factors is definitive. Otherwise, they ask, how can we explain why Botswana has become one of the fastest-growing countries in the world while other African nations are mired in poverty and violence? Or why is North Korea a failure and South Korea a success? They conclude that political and economic institutions determine economic success or failure.

The truth of their thesis can be illustrated by recalling that at the time of our federation, Australia and Argentina were the world’s richest countries. Argentina did not then engage in the two world wars and did not suffer the enormous losses, both in terms of human potential and wealth, that Australia did. So Argentina should have been more successful than Australia. However, the twentieth-century history of Argentina was one of instability, periods of brutal dictatorship, and economic decline.

Why is this? As a former minister in Argentina’s Menem government observed on ABC’s Four Corners in 2002, there is one important difference between the two countries: “Australia has British institutions. If Argentina had such strong institutions, she would be like Australia in ten or twenty years.”

In 1788, Captain Arthur Phillip not only brought people and provisions—he brought four institutions that we have adapted, institutions that are still with us today and which, with two others, have made this nation.

The first was the English language. We were extraordinarily fortunate that this was the language not only of Britain but also of its successor as the world’s dominant power, the United States. Only those who have lived for long in a foreign country will know the enormous advantage we enjoy because we speak what is without serious challenge to the language of the world.

The second institution Phillip brought was the rule of law. This means two things. First, everyone, including and especially the executive arm of government, is subject to the law. To understand how unique this proposition is, you really have to go back to at least the Magna Carta. The second aspect of the rule of law is that while citizens may do anything not prohibited by the law, the executive government may only do those things authorised by the law.

To describe the colony as a British gulag, as one senior Australian politician has, is completely erroneous. Phillip came with a Charter of Justice, which, unlike the Soviet Constitution, was actually applied. The very first civil case in Australia can be found in the law reports, Cable v Sinclair. The Court of Civil Jurisdiction sat in Sydney on July 1, 1788, to hear this case brought by two convicts, Henry and Susannah Cable (or Kable). How they met and what brought them together is a wonderfully romantic story, one which is a great tribute to Lord Sydney as the minister responsible for establishing the colony. The case was brought against Duncan Sinclair, who was the master of Alexander, one of the ships in the First Fleet. It concerned a valuable shipment which had been sent from England. Not only did the Judge Advocate hear the case, he found the convicts and made a substantial award in their favour. That is not what happens in a gulag.

There is another aspect of the rule of law which is important. This was about slavery. Both Phillip and Lord Sydney would have been well aware of a celebrated case in 1772 concerning a runaway slave from the American colonies, James Somersett. In a case brought by his owner, Lord Mansfield is said to have concluded his judgment with the words, “The air of England is too pure for a slave to breathe; let the black go free.”

Americans, especially in the South, were appalled by this decision, which freed 15,000 slaves and left slave owners who had gone to England with their slaves without any legal recourse. Worse, they feared the precedential value of this decision in the colonial courts. The slave owners soon saw the advantages of American independence, as did those who wished to seize lands reserved to the Indians under George III’s Great Proclamation. The mantra “No taxation without representation”, in protest at taxing the colonies to help pay for the long war defending them against the French, was not the only reason for the American revolt.

Phillip was determined that the American experience should not be repeated in the new land. Before leaving England, he wrote:

The laws of this country will, of course, be introduced in [New South Wales], and there is one that I would wish to take place from the moment His Majesty’s forces take possession of the country: That there can be no slavery in free land and consequently no slaves.

As Keith Windschuttle observed in 2007, “The idea that slavery was an affront to humanity that had no place in a free land was part of the original definition of what it meant to be an Australian.”

Although Arthur Phillip’s anti-slavery declaration was well-known to earlier generations of students, historians today rarely mention it. Schoolchildren are deprived of the pride in knowing that theirs is the only continent in the world that has never known slavery.

The third institution Philip brought was constitutional government. Although Phillip had considerable powers, the penal colony was only an interim measure. It proved to be extraordinarily successful, the world’s most successful experiment in criminal rehabilitation. Phillip was not a dictator—he was subject to the law and answerable for his actions. Phillip brought with him our oldest institution, the Crown. But this was not an absolute monarchy, which was by far the dominant model in Europe, where it illustrated the maxim that power corrupts and absolute power corrupts absolutely. The Crown operated under the separation of powers, which Montesquieu identified as uniquely English. Constitutional government, as Phillip knew it, was emerging as the Westminster system we know today. The king was subject to the laws, and the laws could only be changed by Parliament. It was becoming accepted that the executive government, the ministry, could only survive if it enjoyed the confidence of the House of Commons. Above all, and completely consistent with the English concept of the rule of law, people were free to do whatever was not prohibited by the law. Consequently, government, rather than being absolute, was limited to performing what was essential and in particular, defending the realm and maintaining the King’s Peace—that is, law and order.

The fourth institution which Philip brought to Australia was civil society. This consists of all of those institutions separate from government—above all, the family and the church—together with those values which are essential in a civilised society and without which neither constitutional government nor democracy can survive. The values Phillip brought can best be described as Judeo-Christian, and in particular, that version which produced the great campaign led by Wilberforce to end the institution of slavery. These values include truth, courage, love, and loving your neighbour as yourself. Even with the decline of organised religion, these Judeo-Christian values continue today to permeate our laws, our language, and our fundamental institutions. They are part of our broad Australian culture.

This does not mean Australia should not welcome those from other religions, nor does it mean that there is any obligation for an Australian to belong to any of these religions, or indeed any religion. This openness was stressed in the very first sermon preached in this land on Sunday, February 3, 1788, by the Rev. Richard Johnson. He began:

I do not address you as Churchmen or Dissenters, Roman Catholics or Protestants, as Jews or Gentiles … But I speak to you as mortals and yet immortal … The gospel … proposes a free and gracious pardon to the guilty, cleansing to the polluted, healing to the sick, happiness to the miserable and even life for the dead.

Over one century later, in the public consultations on the draft of our Constitution, more supporting petitions were received than for any other concerning a proposal that the preamble recognises what one delegate called the “invisible hand of providence”. This is reflected in the preamble of the Constitution Act, a provision which summarises, succinctly, the very pith and substance of our federation. This is that the people of each of the several states, “humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown … and under the Constitution hereby established”.

These institutions—the English language, the rule of law, constitutional government and civil society—Phillip brought to Australia, where they became the first four pillars of our nation. There were to be two more.

The fifth pillar of the nation was self-government under the Westminster system and within a surprisingly short period. The French, the Spanish and the Portuguese did not transmit the parliamentary concept to their colonies, as the British did to their American colonies long before independence and as they did to Australia.

Initially, the power of the colonial governor was restricted by the law and carried out under written instructions from London. This power was tempered by granting an increasing role to the people, culminating in legislation in 1850, which empowered the various colonies to draft their own constitutions, although they were still to be approved by the Colonial Office in London before being presented for the Queen’s Assent. The New South Wales and Victorian Constitutions received Royal Assent on July 16, 1855. These constitutions were not imposed by London. They were, as Professor Patrick Lane put it, “essentially home grown”.

To strike down another myth, the bills were approved in London well before the rebellion at Eureka Stockade. Whatever Eureka Stockade achieved, it was not self-government under the Westminster system.

The sixth great pillar of our nation was the Federation. This was never inevitable. We could have easily become several countries. In fact, when the British first suggested a federation, the local politicians were outraged. The assertion by former Prime Minister Paul Keating that it was imposed on Australia by the British Foreign Office is manifestly untrue. It was drafted in Australia by Australians and approved by the Australian people. When it happened, it was different from any other federation.

There were no deaths, no violence, no threats of war. Those great Founding Fathers Sir John Quick and Sir Robert Garran described this great achievement this way:

Never before have a group of self-governing, practically independent communities, without external pressure or foreign complications of any kind, deliberately chosen of their own free will to put aside their provincial jealousies and come together as one people from a simple intellectual and sentimental conviction of the folly of disunion and the advantages of nationhood.

The States of America, Switzerland, and Germany were drawn together under the shadow of war. Even the Canadian provinces were forced to unite by the neighbourhood of a great foreign power.

But the Australian Commonwealth, the fifth great Federation of the world, came into voluntary being through a deep conviction of national unity.

We may well be proud of the statesmen who constructed a Constitution which—whatever may be its faults and its shortcomings—has proved acceptable to a large majority of the people of five great communities scattered over a continent and proud of a people who, without the compulsion of war or the fear of conquest, have succeeded in agreeing upon the terms of a binding and indissoluble Social Compact.

These six pillars are the institutions which have made Australia an exceptional nation, both internally and in our role in the world. According to the International Human Development Index, our standards of health, wealth and education result in our being ranked the second nation in the world, very close to the first country, Norway. But with declining educational standards, not telling the young and the newly arrived about our heritage, and an inability to control increasing government debt, we are relying on the achievements of earlier times. How long will we stay near the top?

As to our role in the world, Australia has been involved in a remarkable way in defending the freedom and liberty of others. In the Second World War, we were one of a handful of countries that fought from the beginning to the end. As a percentage of the population, almost twice as many Australians gave their lives as Americans: 0.57 per cent to 0.32 per cent. In the First World War, more than ten times as many Australians gave their lives as Americans, 1.25 per cent to 0.11 per cent.

If we do not tell our young people about this heritage and how we have achieved it, they will not appreciate it. Worse, they may succumb to other theories, fashionable beliefs and new values which will in no way advance their welfare or that of the nation.

The mind is not a vacuum. In my view, man is programmed to believe. There is a warning about religious belief attributed to G.K. Chesterton along these lines: “When a man stops believing in God it is not that he believes in nothing. It’s that he will believe in anything.”

Putting aside religious belief, if we do not pass on to the next generation the facts about our heritage, what ideas, what propaganda will be pumped into their receptive minds?

I argued earlier that the failure in education is just one example of a broader problem concerning the quality of the governance of this country.

Unlike the situation that prevailed when I was young, university education is almost the sole responsibility of federal authorities, who now also preside over school, preschool, and vocational education. This entails a vast duplicate bureaucracy and massive financial resources, an increasing part of which is borrowed.

This is manifestly contrary to the carefully considered constitutional arrangements which the people approved and under which this country was formed. We should never forget that the federal Parliament is a parliament of limited powers set out in the Constitution. All powers not specifically granted by the Constitution to the Commonwealth are saved or reserved to the states under the Constitution.

There was a time when the people were regularly asked to give more powers to the federal Parliament. In fact, they have been asked to vote to transfer nine powers to the Commonwealth. Three of these votes have been given to the people on five occasions: monopolies, corporations, and industrial matters. All of these proposed transfers were rejected by the people.

It is an appalling fact that most of these referendums would not need to be repeated today. Through a re-interpretation of the Constitution by the High Court of Australia, they are no longer necessary. As a result, the Commonwealth enjoyed powers which the people denied it. The High Court has even said that in the interpretation of the Constitution, they cannot and will not be guided by a previous No vote in a referendum.

The late American judge Antonin Scalia was cele­brated for proceeding from the commonsense view that the Constitution means what reasonable people at the time believed that it meant. He held that it was not for judges to change this original intention. If there was a need for change, this should be achieved by a constitutional amendment voted by the people. He believed any other approach, for example, that the Constitution had to be adapted to current values or that it was a “living document”, effectively meant the judges were saying that the Constitution meant what they wanted it to mean.

So, most of the constitutional barriers to vastly increasing the role and function of the federal government have been removed without the people’s consent. In the meantime, the people are constantly told by the establishment that uniformity in almost every sphere of government is overwhelmingly desirable. This is linked to a second theme: Canberra can be trusted to choose the best system to administer any sphere of government, which must be made uniform. This is invariably achieved by appointing expensive consultants who produce a report supported by vast amounts of modelling, which inevitably concludes that there is one very expensive solution to whatever problems the consultants have discovered. This solution requires a vast new Canberra-based bureaucracy to administer it.

That, of course, is not how the federation is intended to work. It is contrary to the experience and wisdom of all those who have lived under successful federal systems. It is contrary to the proposition first established by the American founding fathers that a large country can only be successful as a free democracy if the government is devolved to the lowest possible level.

We federated on the basis that the new federal entity would have limited powers, with other powers being reserved to the states. The states were to be principally dependent on their own sources of income. They would be responsible to the people of their state for the spending of that income.

The federation would thus encourage competition between the states. People would then see when one state does something well, for example, with its hospitals or its roads, and another state does it badly. People would, for example, say, “I have been to South Australia and they do this so much better than in New South Wales.”

The much-maligned former Premier of Queensland, Sir Johannes Bjelke-Petersen, demonstrated this. In 1977, against the strong objections of his Treasurer, he abolished death duties, a move that cost his state $30 million in revenue. As a young articled clerk, I had seen what evil tax death duties were, imposing heavy and inequitable burdens on farming and small business families, precisely when they were in no position to respond adequately. The result of Queensland’s abolition of death duties was that vast numbers of Australians from other states, especially the elderly, moved to Queensland. They voted with their feet. Within months, every other state had abolished this tax, and even Canberra followed by abolishing estate duty. We have forgotten this example of how a federation can and should work.

For some time now, Canberra has been trying to take over, at a very high cost, areas of government for which it is manifestly unsuited. Education is an egregious example. The more the Commonwealth becomes involved in education, the more standards seem to decline. The founding fathers knew this. That is why education was neither an exclusive nor even a concurrent power to be exercised by the Commonwealth. Yet the Commonwealth has been able to get away with what is a breach of the Constitution.

The founding fathers were also no doubt aware that if the Commonwealth were to undertake tasks best left to the states, it would neglect and mismanage those tasks, which were the very reasons why we federated. Take, for example, the defence of the Commonwealth, including the protection and maintenance of our borders. The acquisition of the Collins-class submarine fleet and now its replacement represents one of the most appalling and continuing failures in government administration in our history. And remember, there is no more important role for the federal government than defence. (This means the government should be concerned about the true defence of the Commonwealth and not be distracted by such peripheral issues as the provision of advice on Islamic matters to the navy and gender fluidity in the armed forces.)

We see a similar problem at the state level. This is probably the result of the states being converted into clients of the Commonwealth and forced to exercise too many of their powers under the tutelage and direction of Canberra.

Probably the most important function of any state government is protecting us against crime. There was a time when the states were effective in exercising this power. But in 2005, in the Sir Ninian Stephen Lecture, New South Wales’s prominent Crown prosecutor Margaret Cunneen said something no one else at her level would say but something which in lay terms was being repeated over and over in the lounge rooms and in the pubs of the nation: “Perhaps it is time for us to consider whether public confidence in the courts is now being eroded by the perception that the pendulum has swung rather too far in the direction of the protection of the rights of the accused person.”

There is a continuing decline in the delivery of government in this country. The solution, I believe, lies in making politicians more accountable. In the United States, we see a magnificent example of democracy in action in choosing the candidates of each of the parties for election. This operates not only at the level of the President but at every level of government. The contrast in Australia is dramatic. With exceptions, it is hard to imagine a more closed system, one which ensures candidates are chosen not so much on their merits as on their allegiance to some faceless powerbroker. In return for the cornucopia of legal, financial, and branding privileges that the parties enjoy, they should at least be required by law to be open, transparent, and democratic.

We should be looking to other countries for ways in which we can make our democracy more accountable and more responsive to the wishes of the people.

It is time for a convention to be held to consider the reform of government in this country and to make recommendations to the people. After all, that was the only way we could have achieved federation. Such a move would not involve turning our backs on the federation or pulling it down but instead building upon it.

We should not only recall those wise words of the great Irish statesman Edmund Burke, but we should also apply them:

It is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society or on building it up again without having models and patterns of approved utility before his eyes.

Society is indeed a contract … It is a partnership between those who are living, those who are dead, and those who are to be born.

 

Emergence Of Nationhood And Constitutional Conventions

An understanding of the gradual development of the role of the crown, including the governor-general and the queen, requires such developments to be viewed in the context of the development of Australia as an independent nation. The developments involved changes in convention and, less often, statutes. By convention, we mean those usages or customs that are not to be found in the statute books but nevertheless are binding. In jurisdictions governed by a written constitution, there is a greater reluctance to acknowledge the role played by convention than there is where no such document exists, as in the United Kingdom.

THE AUSTRALIAN CONSTITUTIONAL SYSTEM

At the moment, our principal concern is directed to the conventions governing the relations between the governments of what were formerly referred to as dominions, now realms, and that of the United Kingdom and those governing the role of the governor-general. The federal constitution is concerned primarily with the division and separation of powers within Australia. It is not expressly concerned with resolving questions of nationhood or independence. A survey of Australian constitutional history reveals that Australia acquired independence by a gradual process – although the late Justice Lionel Murphy held that because Australians could change our constitution, we became independent in 1901.

A gauge by which independence may be measured is the willingness of foreign national governments to enter into treaties with Australia. Justice Barry O'Keefe reminds us that after the First World War, Australia was represented independently at the peace negotiations by Prime Minister Billy Hughes. He presses the argument that Australia was a self-governing country, not subordinate to the parliament at Westminster, but rather a partner with equality of status, not necessarily (at that time) equality of stature. That argument was accepted as a hard practical fact by the nations, including Britain, that took part in the peace negotiations. Independence was well established in the international scene by 1920.

Australian independence came to be recognised at the Imperial Conferences of Dominion, and British prime ministers convened in 1917, 1926 and 1930. According to the Balfour Declaration, the dominions were autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the crown and freely associated, as members of the British Commonwealth of Nations.

This result was explained at the 1992 conference in these words:
The rapid evolution of overseas dominions during the last fifty years has involved many complicated adjustments of old political machinery to changing conditions. The tendency towards equality of status was both right and inevitable. Geographical and other conditions made this impossible of attainment by way of federation. The only alternative was by the way of autonomy, and along this road, it has been steadily sought. Every self-governing member of the Empire is now the master of its destiny. In fact, if not always in form, it is subject to no compulsion whatever.

The Balfour Declaration recognised conventions that had already been developed. The Declaration was given statutory effect when the parliament at Westminster passed the Statute of Westminster, 1931, which recognised the full emancipation of the dominion parliaments. Now they could enact laws repugnant to the law of England (section 2), and give "extraterritorial" effect to any legislation (section 3). The statute limits the competence of the United Kingdom to legislate for the dominions to circumstances in which the relevant parliament requested and consented to such imperial legislation (section 4). The act stipulated that the operation of the dominion constitution was not affected in any way (section 7 and section 8). It also stipulated that, unlike the Canadian provinces to which it would apply, the act would not apply to the Australian states. This was at their request (section 9). Finally, the act would not have any effect in Australia until the parliament of the Commonwealth of Australia adopted the act itself by means of an adopting act (s10). In fact, the commonwealth parliament did not adopt the statute until 1942, at which time the act was given a retrospective operation "as from the commencement of the war between His Majesty the King and Germany".

The precise point at which independence was attained remains a moot point. Was it the political compact? Was it the formal offer by the mother parliament? Or was it the formal acceptance of the offer by the newly independent dominion parliament? In a fairly recent judgement, Lord Denning MR maintains independence came as a matter of evolving usage and convention rather than by means of enactment:

Hitherto I have said that in constitutional law, the crown was single and indivisible. But that law was changed in the first half of this century, not by statute, but by constitutional usage and practice. (R vs Secretary of State for Foreign and Commonwealth Affairs ex parte Indian Association of Alberta, 1982, 2 WLR, 641, at 651)

The passage highlights the role conventions have played in the evolving relationship between governments within the British Empire and the subsequent Commonwealth of Nations. Were such relations governed by the rigidity of statute such developments could not occur so naturally as need requires. The gradual emergence of full Australian nationhood was possible precisely because of the flexibility that is offered by convention. It has been argued that legal independence did not occur until the passage of the Statute of Westminster through both imperial and dominion parliaments was complete. In a passage dealing with the difficulty of making such a determination, Chief Justice Sir Garfield Barwick said:

The historical movement of Australia to the status of a fully independent nation has been both gradual and, to a degree, imperceptible ... though the precise day of the acquisition of national independence may not be identifiable, it certainly was not the date of the inauguration of the Commonwealth in 1901. The historical, political and legal reality is that from 1901 until some period of time subsequent to the passage and adoption of the Statute of Westminster, the Commonwealth was no more than a self-governing colony though latterly having dominion status. (China Ocean Shipping Co. v South Australia, 1979, 145, CLR 172 at 183)

The position was certainly resolved by the Australia Acts of 1986, which make certain that Australia is absolutely independent of the United Kingdom. Sir Anthony Mason, then Chief Justice of Australia, held this to be the true date of a hand-over of sovereignty, explaining that the Australia Acts: "marked the end of the legal sovereignty of the imperial parliament and recognised that ultimate sovereignty resided in the Australian people". (Australian Capital Television Ltd v Commonwealth, 1992, 177, CLR 106 at 138)

With the Balfour Declaration and the Statute of Westminster had come the termination of British legislative and executive responsibility, at least for the commonwealth, if not the states. Judicial responsibility remained, however, until the termination of appeals to the privy council (Her Majesty in Council), which had become part of the Australian court structure.

There are four significant points about the Australia Acts of 1986. Firstly, the bulk of the acts is concerned with severing those remaining legal ties between the states and the United Kingdom. These gave the state legislatures the full powers that the United Kingdom had previously retained — at Australia's request — to leg¬islate for the state as well as the power to legislate extra-territorially. The Colonial Laws Validity Act 1865 and the doctrine prohibiting repugnance to the law of England no longer applied (section 6). British executive responsibility and privy council appeals from the state disappeared (section 10 and section 11).

Secondly, the Acts clarify the role of the queen and the governors regarding the states. The state premiers would give advice on the exercise of royal powers, not through the British government, but direct to the queen. The premiers were never prepared to go through Canberra.

Thirdly, the Statute of Westminster was amended in several respects. These included the termination of the power of the United Kingdom parliament to legislate for the commonwealth, the states and territories thereof, even at the request of the Australian parliaments. (Notwithstanding this, over recent years, some Republicans have made the bizarre suggestion that the British parliament should be requested to impose a republic!) Now no British Act can henceforth apply to any Australian jurisdiction (section 11 and section 12).

Fourth, the Acts stipulate that the Commonwealth of Australia Constitution Act and the Statute of Westminster continue to be in force and provide an intricate method by which the Australia Acts and the Statute of Westminster may be amended. Both Acts, enacted in substantially identical terms by the United Kingdom and Australian parliaments, were proclaimed by the queen to come into effect on March 3 1986. On arrival in Australia to proclaim the Australian version, she observed both the rise of an Australian national identity and the circumstances under which the constitutional relationship between Australia and the United Kingdom had come to an end:

I can see a growing sense of identity and a fierce pride in being Australian. So it is right that the Australia Acts has finally severed the last of the Constitutional links between Australia and Britain, and I was glad to play a dual role in this. My last official action as Queen of the United Kingdom before leaving London last month was to give my assent to the Australia Acts from the Westminster Parliament. My first official action on arriving in Australia yesterday was to proclaim an identical Act, but from the Australia Parliament – which I did as Queen of Australia. Surely no two independent countries could bring to an end their constitutional relationship in a more civilised way, and I hope you will agree with me that this has been symbolic of the depth and quality of the relationship between Australia and Britain. Anachronistic constitutional arrangements have disappeared – but the friendship between the two nations has been strengthened and will endure. (McDonald, 67)

What we have seen since the adoption of the Australian con¬stitution is the gradual emergence of Australia as an independent nation. This surely is one of the beauties of our system – that it has permitted such a peaceful evolution.

As Sir Harry Gibbs explains:
Our Constitution has been criticised because it sketches the outline of the system of government and does not set out in detail the rules and conventions that determine the working of the various arms of government. Any such criticism is totally misconceived. The strength of our Constitution, as it has been the strength of the Constitution of the United Kingdom, is that it allows the needs of a changing society to be met by a gradual development, which has been found impossible in some nations whose written Constitutions attempt to lay down all the rules in detail. (Gibbs, 1994)

[Read More: Australia In The Twenty-First Century: An Independent and Self-Determining Nation,  by The Honourable Barry O'Keefe, AM, QC ]

 

The Second Referendum Model

We come now to the so-called "bipartisan model" for a republic that emerged from the Constitutional Convention. It is essentially owned by the Australian Republic Movement (ARM), which had for years espoused the first version of the Keating—Turnbull republic. That is why it is best described as the second version of the Keating—Turnbull republic.

The fundamental question for Australians in the coming ref¬erendum is whether this model is better than, or at least as good as, the present constitution. The Australian Republic Movement (ARM) argues that it is as good and that the change is only symbolic. But if the Australian Republic Movement (ARM) is questioned about the details of their model, the response usually is that opponents are engaged in the "mother of all scare campaigns". This will be a term used over and over during the campaign.
It is clear the last thing the Australian Republic Movement (ARM) wants is a debate on the detail of the model. Kim Beazley says he would become "terribly depressed" if this debate were to be about the "minutiae" of the election of the president and the president's power. (Australian, 26 November 1998) The principal issue, he says, is about having an Australian head of state and a republic. Whether or not we like the process that emerges, he argues we can deal with any problems down the road. (SBS News, 27 January 1999) These could be fixed up at future referenda! These details should not cloud the move to a more "mature" political system. (Australian, 26 November 1998)

An unbiased observer could not fail to come to the conclusion that this is an admission the Keating—Turnbull republic is inferior to the present system. Kim Beazley's suggestion of further referenda confirms this. But, surely, if a change of this nature is proposed — as Thomas Keneally says, the biggest structural change since the Federation —we ought to end up with a constitution at least as good as we have. It is not as if there has not been enough time or enough money spent. The taxpayers' money, not the ARM'S. In fact, the Australian Republic Movement (ARM) has had the best part of a decade, and by the referendum, about $120 million of the taxpayers' funds to produce their model and have it put to the people.

The first Keating—Turnbull republic was also a failure. It did not make the president a mirror image of the governor-general. It would have instead imported into Australia the essence of the 1958 French Fifth Republic, which allows the "cohabitation" between two powerful competing politicians, a president and a prime minister. The only reason France tolerates the inevitable tension between these two is that the dozen or so previous constitutions since 1789 were all failures too.

Displaying, as Sir Harry Gibbs says, a "remarkable pliability", the second Keating—Turnbull republic goes to the other extreme. It turns the president chosen by the politicians into the prime minister's poodle. And no explanation for this drastic change has ever been forthcoming. It bears all the marks of the frantic manoeuvring, wheeling and dealing, trade-offs and "back-of-the-envelope" drafting in the last days of the 1998 Constitutional Convention. All done just to achieve a majority of votes, which still eluded the Australian Republic Movement (ARM). The model puts the president at the absolute mercy of the prime minister. Unlike the constitution of any other democratic republic, the prime minister will be able to sack the president. At any time. For any reason. Or no reason. Without any notice or right of appeal. This is the power that the prime minister certainly does not have now! To the question of why no other republic has such an arrangement, Clerk of the Senate Harry Evans gives an awesome answer. No other country has ever been so misguided as to accept such an obviously unbalanced arrange¬ment. Leading experts on the Constitution, most of them Republican — have identified a multitude of serious flaws in this model.

The Australian public is passionate about fair play. A rule change which allows one of the captains to send off the referee will be recognised as the rort it so clearly is. This Republican model is not only another embarrassing failure — it is dangerous. To give effect to the model, two bills have been passed by both houses of parliament. They will not be submitted to the governor-general for the royal assent unless the principal bill, the Constitutional Alteration (Establishment of Republic) 1999, is approved in the referendum on 6 November 1999. The other bill is the Presidential Nominations Committee Bill 1999 (Nominations Bill). The people can see this but not vote on it. Other significant areas of detail are also left to the politicians to develop and change.

The Referendum Question

The manner in which a referendum question is put to the people is governed by the Referendum (Machinery Provisions) Act 1984. A referendum question must set out the title of the proposed law to amend the constitution and then ask whether the voter approves. The original title of the Referendum Bill, as introduced into parliament, read: "A Bill for an Act to alter the Constitution of Australia as a republic with a president chosen by a two-thirds majority of the members of the commonwealth parliament."

In its submission, ACM pointed out the long title does not refer to the unique and extraordinary aspect of the model. Unlike any other known republic, the prime minister can summarily dismiss the president. ACM, therefore, submitted that the following words be added to the title: "appointed for a term of five years but removable by the prime minister at any time by a signed notice with immediate effect". Clerk of the Senate Harry Evans and Australian Republic Movement (ARM) patron Senator Andrew Murray made similar submissions. A range of submissions on the title were received by the Parliament's Joint Select Committee on the Republic Referendum. At a hearing in Sydney on 5 July 1999, Australian Republic Movement (ARM) Chairman Malcolm Turnbull even argued for the deletion of the words "republic" and "president".

The Committee, whose membership was strongly Republican, finally recommended the title be: "A Bill for an Act to alter the constitution to establish the Commonwealth of Australia as a republic, with the queen and governor-general being replaced by an Australian president." This was no improvement. It obviously excluded any reference to the method of choosing or especially dismissing the president. And while the president will replace the governor-general, the queen's functions certainly do not go to the president. They go to the politicians, particularly the prime minister. And the Committee wanted to state clearly and simply the essential purpose and outcome of the bill as it claimed. Why did it put "Australian" before "president"? Surely the detail of the model is part of the essential purpose and outcome of the bill.

In the meantime, polling had indicated that there would be substantially different results depending on the question. But it was probably not explained to those polled that all of the questions were in fact, about the same model! In any event, the government chose an amended title which eventually prevailed: "A Bill for an Act to alter the Constitution to establish the Commonwealth of Australia as a republic with the queen and governor-general being replaced by a president appointed by a two-thirds majority of members of the commonwealth parliament."

The senate then approved an amendment by the Australian Democrats, changing the title to: "A Bill for an Act to alter the Constitution to establish the Commonwealth of Australia as a republic." A meaningless title that the government rejected before both houses finally approved the bill.

Nomination

Under the Nominations Bill, any Australian citizen may nominate just about any other citizen to be president. This procedure is quite pointless. Under the Nomination, Bill, the 32-person Presidential Nominations Committee, with a majority directly nominated or aligned to the prime minister, must give a confidential written report on nominations received by the prime minister. This must include a confidential shortlist of the most suitable candidates (clause 20). The prime minister is not, under section 60, to do any more than consider the report. He may nominate any Australian citizen to be chosen as president. So why have this process? Before the convention election, the Australian Republic Movement (ARM) indicated it had not closed its mind on the question of direct election of the president by the people. They knew, of course, that opinion polls constantly show that if Australia were to become a republic, an overwhelming majority would insist that the people should elect the president. So to camouflage the fact that the second Keating—Turnbull republic will be a politician's republic, we have a cosmetic nomination process. And it may well be worse than useless. Remember that Bill Hayden had said that only the "stout hearted" would be able to endure that "personal inquisition" to which a nominee might be subjected by a joint sitting of parliament.

As Sir Harry Gibbs says, this is likely to deter at least some suitable persons from allowing their names to be considered. (UNSW, 1998, 16) Those of the calibre of, say, Roma Mitchell, Zelman Cowan, Richard McGarvie, or Peter Sinclair are unlikely candidates. We can be sure that this process will come to resemble US senate nominations, which in recent years have involved witch-hunts against anyone who is perceived as having ideas unaccept¬able to members of the relevant committee. At the convention, Federal Treasurer Mr Peter Costello said that the nominations process would put people who are up for consideration in a very difficult position. But when he put this to Malcolm Turnbull, who had come "like Nicodemus, by night to try to steal my vote". Mr Turnbull replied, "Don't worry about any of that: the parlia¬ment can ignore it." ("Hansard", 1998, 975) Republican academic Professor John Williams writes that the untested political assumption is that the Nomination Committee will quell the people's obvious electoral appetite for a say in the election of the president. He concludes that it is a hollow attempt to appease electoral demands in states other than NSW and Victoria. In other words, it's a front. And a failed one at that. It certainly hasn't fooled the real Republicans, Ted Mack, Clem Jones, Phil Cleary and Martyr Webb.

The "Election"

The next stage in the process is for the prime minister to make a single nomination to a joint sitting of the commonwealth parlia¬ment. Under a last-minute amendment, it is only at this point that politicians and members of political parties are excluded. In other words, they can resign just before nomination. The nomination must be seconded by the leader of the opposition in the house of representatives. The joint sitting must then approve the nomination by a two-thirds majority. So this will normally require approval by the opposition.

Winterton warns that it could be difficult to identify the leader of the opposition constitutionally, as the non-government parties in the lower house may have equal numbers or no members at all– as was the case in New Brunswick after the 1987 election when the government won all the seats. His solution is to give this responsibility to the speaker of the house. The speaker is the neutral presiding officer, the symbol and advocate of the house as a whole. As such, he or she could not be entrusted with political discretion. The speaker could be given the role only if it was not political, merely ceremonial. But in this case, the seconder has no choice but to second the nomination, further strengthening the position of the prime minister.
There seems to be no obligation on a prime minister to make a nomination. This could suit a prime minister who wishes to keep the office vacant and is happy with the president continuing in office under section 61 or with an acting president or deputy president. Neither the support of the leader of the opposition nor of a joint sitting would be necessary to support this strategy.

A political deal can also take the form of a trade-off. An opposition may well accept the government's nominee on the basis of some returned favour. The deal could be: We do not really like your presidential nominee, but we will support the nomination if you do something in return for us.
Public negotiations also tend to leak. The way in which the presidential nominee has been selected would inevitably become known to the public. The deals would be explained in the press. The selection process would then be looked upon unfavourably by outsiders and demeaning to the candidate selected.

Of course, politicians are well accustomed to deals. Northern Territory Chief Minister Mr Shane Stone argued that even on the subject of the proposed law to suppress the Northern Territory euthanasia law, a conscience vote was impossible. "What you'll see is the linking up of groups in factions, deals will be done and there'll be trade-offs with people ... in the senate in exchange for other bills. I know how it works, we're a soft target, we're an easy trade." (Sydney Morning Herald, 6 July 1996)

Perhaps one of the best-known deals was the Kirribilli House Agreement made before the 1990 election. Prime Minister Hawke agreed that after the election, and unbeknown to the electors, he would hand over the prime min¬istership to Paul Keating. Witnessed by TNT CEO Sir Peter Abeles and ACTU Secretary Bill Kelty, the agreement was kept secret. But when Mr Hawke changed his mind after the election, and Mr Keating went to the backbench to campaign against him, the agreement found its way to the press. (Hawke, 451-453)

The point was, of course, that the deal was of momentous public interest. The people thought they were electing a government to be led by Bob Hawke, not Paul Keating. It is, of course, either naive or deceptive to think that politicians will use the power to elect a president only for the purpose of choosing a president above politics. The two-thirds vote will ensure that they enter into a series of deals and trade-offs as the price for accepting the prime minister's nomination. The Americans understood this. So when they founded their republic, they wanted to ensure that the process of electing the president was not corrupted by deals and trade-offs. The politicians were totally excluded from the process, especially re-elections, to ensure, as founder Alexander Hamilton insisted, there was no "sinister bias". (Hamilton, 457)

But in Australia, the political deals and trade-offs surrounding the election of the president will not only be possible, they will be entrenched.
The president will owe his office to politicians' deals. Worse, he is just as likely to be a party to the deals. Yet the Australian Republic Movement (ARM) argues that a popular election will inevitably produce a politician. Their president will not only be a politician but one who emerges from shabby and secret political deals. As democratic republican Ted Mack says, "The president won't be one of us. He'll be one of them." This will no longer be a position beyond politics. The second Keating—Turnbull republic will most certainly be a politi¬cian's republic. And the president will most definitely be the politicians' president.

The President

A new section 59 of the constitution would provide that:
The executive power of the Commonwealth is vested in the president and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth. The president shall be the head of state of the Commonwealth.

There shall be a Federal Executive Council to advise the president in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the president and sworn as Executive Councillors and shall hold office during the pleasure of the president. The president shall act on the advice of the Federal Executive Council, the prime minister or another minister of state, but the president may exercise a power that was a reserve power of the governor-general in accordance with the constitutional conventions that related to the exercise of that power by the governor-general.

It will be noted that for the very first time, the term "head of state" is to appear in an Australian constitutional document. This is a diplomatic term which has been used, or more correctly misused, by the Australian Republic Movement (ARM) to create a case for change. This totally superfluous provision can have been inserted only to give some substance to the deception that the governor-general is not already a head of state and that the term is of some constitutional significance, which it is clearly not.

The first and second paragraphs continue, in a republican form, sections 61 and 62 of the existing constitution. However, the third paragraph differs both from the present constitution and also from the Communique of the Constitutional Convention in two ways. First, the sources of advice to the president specified in the constitution are increased from the present one, the federal executive council. The sources of advice are now the federal executive council, the prime minister or another minister of state.

Although the addition of the prime minister and another minister of state to the federal executive council actually reflects current constitutional practice, their express inclusion creates a situation where the president may receive conflicting advice of apparently equal validity from different sources. This would not matter if such advice were not legally binding, which is the position at present.

The second difference is the more important. The president is now legally bound to act on advice. This appears to deny the president the traditional rights of the governor-general to be consulted, to advise, and to warn. That is, as a constitutional auditor.

Thus, if any minister of state insisted that he act immediately, the president would probably be precluded from doing what governors-general have normally done — asked questions. Requesting the executive council to obtain formal advice from the attorney-general or solicitor-general or delay acting on questionable advice until satisfied that it was constitutional or legal. The Constitutional Convention did not recommend that the president be placed under a binding legal obligation to act on advice. We have previously referred to the case in India, where Mrs Ghandi had insisted the president sign an unjustified Declaration of Emergency. Under this constitution, a president could not refuse.

It is difficult to exaggerate the enormity of the change. At one stroke, it denies the president the day-to-day power and duty that governors-general have enjoyed as auditors of the proper process since federation. But that is not all. The reference to the reserve powers appears to make their exercise justiciable—that is, reviewable in the high court, a matter ACM raised soon after the Exposure Draft was released in April 1999.

The reserve powers are those where the governor-general may act at his own discretion as the constitutional umpire. Under the third paragraph of the new section 59, we have tension. There is now a mandatory obligation on the president to act in accordance with the advice of the executive council and others. But there is an exception relating to the exercise of the reserve powers in accordance with the constitutional conventions governing their exercise by the governor-general. As the first part of this paragraph imposes a legal duty on the president, ACM and others argued it would be "justiciable" and thus enforceable in the high court. (See, for example, the high court decision in The Queen vs Toohey, ex parte Northern Land Council, 1981, 151, CLR 170) So the exercise of a reserve power must also be "justiciable". The traditional view is that the exercise of reserve powers under the present Australian constitutions cannot be examined or reviewed by the courts. For example, Sir John Kerr's decision to dismiss Mr Whitlam and dissolve parliament could not have been reviewed by the high court.

Some Australian jurists say the law has developed so that now the exercise of the reserve powers is justifiable. On this view, Sir John Kerr's decision to dismiss Gough Whitlam in 1975 could have been reviewed by the high court. That could have extended the constitutional crisis for many weeks or even months. This was the Pakistan experience when the exercise of the president's powers was found to be justifiable. In the absence of a clear provision in the constitution, only the high court can give us the answer. And then only when someone with standing seeks a review.

More recently, the former solicitor-general and attorney-general, republican Bob Ellicott QC, dropped a bombshell. He argued that it was likely that the high court would find that under the Keating–Turnbull republic, the president had actually lost the power to dismiss the prime minister. This flowed from the proposed new section 59, which provides that the president may exercise a power that was a reserve power of the governor-general "in accordance with the constitutional conventions" relating to the exercise of that power.

But the attorney-general says in the Republic Bill Explanatory Memorandum, referring to 1975, that there is no generally agreed convention relating to the exercise of the reserve powers. New section 59 only allows the president to exercise reserve power in accordance with convention. Ellicott concludes that if a president dismissed a prime minister under this republic, the high court could review the president's decision, but guided by the Explanatory Memorandum, it could then find the power to dismiss no longer existed.

Just before the Republic Bill was to be passed in August 1999, the attorney-general introduced an amendment. Under clause 8 of Schedule 3, the bill will not make justiciable the exercise of reserve power if the exercise is not justifiable now. But as we have seen, the law is now unclear on this point. And because of the "who shoots first scenario" which we are yet to discuss, high court involvement may be unavoidable. It would have been far better to have closed off the potential for a high court review of the president's exercise of reserve power. After all, the exercise of the prime minister's power to dismiss the president is not reviewable. Why should the presidents? This is yet another example of the failure of the Keating–Turnbull process to involve the people at all stages and to ensure proper public discussion. It once again demonstrates that this model has been scrambled together without careful consideration which was a feature of the federation process.

DISMISSAL

All democratic republics give the president a degree of tenure during his or her term. Where he or she presides over a Westminster system, the president will ideally operate as a check and balance on the politicians. If she or he does not, then you have a system that leaves the same politicians in control of both the legislature and the government—an excessive and dangerous concentration of power.

Historical evidence demonstrates that in the Westminster system, the crown, rather than a president, provides the better check and balance as an umpire and auditor against this concen¬tration of power. (Obviously, there are others, the courts, a free press etc.) A Westminster president needs to have a clearly defined role. His powers must be codified —which, as we have seen, can bring in the problem of justiciability. How do we know the precise boundaries of his powers without a court ruling on them? And above all, the president needs the security of tenure, but obviously, he or she should be removable for proven and serious breaches of the law or of her duties.

This is normally done through a three-stage process of impeachment. First, there is a formal charge or impeachment on specified facts falling within grounds for dismissal set out in the constitution. So that this is not frivolously made, this usually has to satisfy, say, a house of parliament, as in the United States, or a specified majority of members of parliament. Then there is a fair trial, for example, before the senate as in the US, or before a tribunal of five judges presided over by the chief justice, as in Singapore. Finally, there is usually a parliamentary vote with a special majority (two-thirds in the US, three-quarters in Israel and Singapore).

Without an impeachment process, you cannot have a democratic republic. The eerie words of the proposed new section 62 of the constitution demonstrate that this is not a democratic republic: "The prime minister may, by an instrument signed by the prime minister, remove the president with effect immediately."

These are words which have no precedent in any constitution of any republic. The prime minister must seek approval from the House of Representatives for this action within thirty days unless (i) within the thirty days the house expires or is dissolved or (ii) before the removal, the house has expired or dissolved, but a general election has not taken place. Note that the Senate is not involved. Sir Anthony Mason thinks this goes too far in strengthening the House against the Senate. The exclusion of the Senate is especially significant in light of the 1975 crisis. Had Sir John Kerr been a president under this republic, Gough Whitlam would have been able to instantly dismiss him without any reference to the senate. But if the House of Representatives does not ratify the prime minister's action, the president is not to be reinstated. According to the Explanatory Memorandum, this ensures an opportunity for parliamentary scrutiny of the prime minister's action. This is not so. It only allows for scrutiny by the house.

The Explanatory Memorandum recalls that the convention had said a failure by the House of Representatives to ratify the prime minister's decision to dismiss the president would constitute a vote of no confidence in the prime minister. The Memorandum says it is highly unusual to have a vote of no confidence in a single minister, particularly the prime minister. One consequence of a vote of no confidence in the prime minister might be a loss of government. However, the Constitution is silent on the issue. So it leaves the question unresolved. It is to be left "for resolution in accordance with parliamentary processes, which must, in turn, develop within the broader constitutional framework". Whatever that may mean. Yet another example of how little proper care and scrutiny has been given to this model.

Sir Harry Gibbs believes that just the knowledge of his own insecurity would prevent a president from taking valuable but uncontroversial initiatives. He recalls the decision taken in Tasmania in 1989 by Governor Sir Phillip Bennett, who would not accede to the request of the premier that an election be held. The governor was satisfied that the opposition could form a government with the support of the Greens. The model, Sir Harry says, fails completely to strike a balance between the offices and greatly strengthens the position of the prime minister at the expense of the president.
A long list of criticisms is levelled against the procedure by Professor Winterton, some of which include: failure to stipulate grounds for removal; unnecessary exclusion of the senate from the dismissal procedure; the prime ministerial action may be thwarted by pre-emptive presidential action; failure to explain why a wrongly removed president should not be automatically reinstated; and presidential competency should not be linked to the house's confidence in the prime minister.

Gareth Evans, a minister in the Keating government and a prominent Republican delegate at the Constitutional Convention, has been quoted as saying he could never live with having a president who could be dismissed by the prime minister at the stroke of a pen — that this would make our president the most miserable head of state in the world. (Frank Devine, Australian, 12 February 1999)

Both Keating—Turnbull republics suffer from the fundamental deficiency that while they would dismantle the crown piece by piece, first federally and then at the state level, they offer nothing in its place. It is difficult not to come to the conclusion that the Australian Republic Movement (ARM) just does not understand the role and nature of the Australian crown. Not understanding, they wish to destroy that institution without putting anything in its place — except the absolute executive authority of the prime minister.

The proposition that the neutered office of the president could be an adequate substitute for the crown confirms an inability or unwillingness to accept the subtleties of the present constitutional arrangements. The second Keating—Turnbull republic ensures that the president must emerge from deals and trade-offs between the politicians under this system. He is already guaranteed to be the politician's president. But this politician's president will hold office at the whim of the prime minister.

Anglo-American political thought and practice is suspicious of the proposition that an ideal political arrangement can be devised and that the government established should be endowed with vast powers. Rather, our tradition is to be suspicious of potential abuses of power. This is reflected in the advice of Paul Keating's own Republic Advisory Committee, chaired by Malcolm Turnbull. They reported they had encountered an almost universal view that, regardless of the integrity of any prime minister, the head of state should not hold office at the prime minister's whim and must be safe from instant removal to ensure appropriate impar¬tiality. The need to protect the head of state from arbitrary removal has particular force, they said, where the head of state has discretionary powers that can be exercised adversely to the interests of the prime minister or the government. (RAC, Vol 1, 77)

The traditional view is most famously enunciated in Lord Acton's dictum, "Power tends to corrupt, and absolute power corrupts absolutely." Thomas Jefferson once asked, "What has destroyed liberty and the rights of men in every government?" He answered: "The concentration of all powers into one body." And as we have noted, Australian Republic Movement (ARM) patron Senator Andrew Murray warns that the second Keating–Turnbull republic gives the prime minister "absolute executive power".

When confronted with this the proponents of the Keating–Turnbull republic nowhere acknowledge their previous counsels against the president holding office at the whim of the prime minister. Their knee-jerk reaction is to talk of the "mother of all scare campaigns". But when pressed, they answer the critique in three ways – and thereby accept that the fault exists. First, they say, no reasonable person would behave so unreasonably. Then they say that the prime minister will not be able to choose "the president's successor". Finally, they claim that it merely replicates the current system.

No prime minister would dismiss unreasonably.

But people in power do not always act "reasonably". Emeritus Professor Geoffrey Blainey, in a speech on 10 March 1998, reminded us that in the 1930s, one of the world's most civilised countries, Germany, fell into dictatorship because at the very top the constitutional checks and balances of the Weimar Republic were found wanting. Of course, he was not saying, as one newspaper suggested, that another Hitler is possible. What he was reminding us was to those who say that authoritarianism could never come, one of the principal purposes of a constitution should be to ensure that excessive concentrations of power are not possible.

During the convention debates of the nineteenth century, Sir Richard O'Connor actually warned of the dangers of a supply crisis, particularly where a double dissolution was not available. But the founders preferred to rely on the good sense and moderation of politicians rather than a special provision to cover this. (Galligan, 85,86) In 1975, good sense and moderation seemed to have flown the coop. It was fortuitous that the "trigger" existed for a double dissolution. If it had not, the governor-general could still have acted, but only by having a dissolution of the House of Representatives and an election for half the Senate. The new Senators, with the exception of those from the territories, would not have taken office for many months.
What good would dismissal do the prime minister?

The ARM'S second response is that in dismissing the president, the prime minister will not necessarily get his man or woman as acting president. Won't he? The Republic Bill makes it clear that the prime minister can dismiss any or all acting presidents and that the prime minister could already have such deputy president as he wishes, with such powers as he has specified. Proposed section 63 of the constitution assures this:
63 Acting President and deputies:
Until the Parliament otherwise provides, the longest-serving state gov¬ernor available shall act as president if the office of president falls vacant.

A state governor is not available if the governor has been removed (as acting president) by the current prime minister under section 62.
Until the Parliament otherwise provides, the prime minister may appoint the longest-serving state governor available to act as president for any period or part of a period during which the president is incapacitated.

The provisions of the constitution relating to the president, other than sections 60 and 61, extend and apply to any person acting as president.
Until the Parliament otherwise provides, the president may appoint any person, or any persons jointly or severally, to be the president's deputy or deputies, and in that capacity to exercise during the pleasure of the president (including while the president is absent from Australia) such powers and functions of the president as the president thinks fit to assign to such deputy or deputies; but the appointment of such deputy and deputies shall not affect the exercise by the president personally (including while the president is absent from Australia) of any powers or functions ... (These powers are exercised on "advice": section 59)

We have thus the most extraordinary aggregation of power in the hands of the prime minister ever known in the history of our country, or indeed of any democracy. This results from the following:

The result is that the role of the president, as a check and balance on unconstitutional action by the prime minister, is weakened even further than in the 1998 convention communique. The politician's president will be well and truly the prime minister's apathetic poodle.

The prime minister can do it now.

The ARM'S final attempt to answer concerns about the prime minister's extraordinary concentration of power in this republic is to claim that he will have no more than the prime minister enjoys now. That this is untrue can be demonstrated by reference to the events of 1975. Sir John Kerr says that on 11 November 1975, he asked Gough Whitlam if he intended to govern without supply. When Whitlam replied that he did, Sir John said he intended to withdraw Whitlam's commission. Whitlam jumped up, looked at the tele¬phone and said: "I must get in touch with the palace." "It is too late," Sir John said. Whitlam asked, "Why?" Sir John told him: "Because you are no longer prime minister; these documents tell you so, and why."

In a re-run of 1975, it would be possible under this republic for Gough Whitlam, instead of saying: "I must get in touch with the palace," to have simply dismissed him. He could have scribbled and signed a note saying: "You're dismissed." Under this republic, he may well carry a prepared note. The point is there is nothing — nothing Gough Whitlam could have done to have secured Sir John Kerr's dismissal at their meeting on 11 November 1975.
It is completely untrue to say that the instant dismissal under the Keating—Turnbull republic replicates our current system. The procedure for the appointment and, by implication, the removal of governors-general was in fact settled at the Imperial Conference in 1930, where it was agreed that formal advice on an appointment (and thus removal) would come from the dominion ministers usually the prime minister. But this would be after informal consultation. All of which takes time. It is true that the prime minister can recommend to the queen the removal of the governor-general. But that does not equate to the governor-general holding office at the whim of the prime minister.

In 1932 prime minister de Valera petitioned the king to dismiss the governor-general of the Irish Free State. The king did feel some doubt about whether he had to accept de Valera's advice. He declared that, while he was ready to act in accordance with constitutional practice respecting advice, in this case the advice was related to the position of the sovereign and to his personal prerogative and, therefore, the advice had a special char¬acter. So he asked for reasons to be given for de Valera's request. He also wanted Governor-General McNeill to be given an opportunity to resign and a longer period of notice. In this case, the King's decision had the effect of inducing a voluntary relinquish¬ment of office and so obviated the need for the King to exercise his prerogative.

How might this compare with the situation that could have arisen in 1975 had Whitlam attempted to act as de Valera did? Whether or not one believes the queen would have been bound to act on such a request, it is clear that Sir John Kerr would not have been dismissed immediately on the basis of a midnight tele¬phone call. Even if he had wanted to, which he denies, Gough Whitlam could not have had the governor-general dismissed in time to evade his own dismissal. In 1982 the queen's private secretary, Sir William Heseltine, confirmed this in a letter later cited at a session of the Advisory Committee of the Australian Constitutional Commission: "I can say that, while a telephone call from the prime minister might have frozen the situation, Her Majesty certainly could not have acted on the basis merely of a telephone conversation to dismiss her governor-general. Some formal instrument, whether transmitted by mail or cable, would most certainly have been required." And Sir David Smith points to the recent New Guinea example, where an original document, not a facsimile, was apparently thought necessary.

Professor George Winterton, a professor of constitutional law and a Republican, accepts that the queen could take time to consider any advice of the prime minister and even endeavour to persuade the prime minister to withdraw his advice. He says the queen would ultimately "be obliged to accede to that advice unless she were willing to countenance a general election in which her conduct was an issue". He accepts that under the Keating—Turnbull republic, the president will lack "this slender shield" and that the president's vulnerability will be "unprecedented among world republics". ( Weekend Australian, 7-8 August 1999)

Fred Daly, who was the Leader of the House and Minister for Administrative Services at the time of the 1975 crisis, agrees, and he ought to know. He confirms that the removal of a governor-general is not a speedy or simple process. (Daly, 237) Sir Anthony Mason believes that any assumption that the queen would act immediately on a prime minister's request is "quite incorrect". He believes that the queen would be entitled to consider the matter. She might well take the view that an Australian constitutional con¬troversy should take its course according to the judgement of the governor-general "without intervention on her part until that controversy was resolved". (Mason, 1998)

Author Sarah Bradford writes that while there is nothing the queen can do if a prime minister submits a name for an appointment she is not happy with, she is not powerless. She recounts a story about a Dean of St Paul's who had asked what the queen could do if she received advice to make an unsatisfactory ecclesiastic appointment. The queen replied, "I can always say I should like more information. This is an indication a prime minister will not miss." (Bradford, 498)

But the strongest argument against the proposition that the governor-general holds office at the prime minister's whim comes from Gough Whitlam himself. He suggests the proposition is "preposterous" and "ludicrous"! In The Truth of the Matter, he ridicules Sir John Kerr's fears that he could have him removed by telephone. Whitlam referred to our recent experience in seeking the removal of Queensland Governor Sir Colin Hannah's "dormant" commission to act as administrator of the commonwealth. All state governors normally receive these. Sir Colin had publicly criticised the Whitlam government, that it engaged in political controversy–an act normally thought to be incompatible with viceregal status. An open and shut case for removal. It took ten days.

Whitlam says he merely asks: "Have you discussed this with the palace?" and that Kerr replied, "I don't have to and it's too late for you. I have terminated your commission."

At the very least, then, even if she ultimately accepted her prime minister's advice, the queen would be entitled to the three rights recognised by the celebrated nineteenth-century constitu¬tional authority Bagehot: to be consulted, to encourage, and to warn. That means time, precious time.
As we have seen, some experts say the queen has the discretion to refuse unacceptable advice. Professor Tony Blackshield and Justice Kim Santow say it is generally accepted that if in 1975, there had been a race to the queen and Gough Whitlam had won, the queen would have exercised independent discretion in deciding whether to remove the governor-general in what were already exceptional circumstances. (Australian Financial Review, 16 February 1998) However, those who have been closest to the question, Sir John Kerr and Sir David Smith, think that ultimately the queen must accept the prime minister's advice if he insists.

In any event, as former governor-general (and Labor Premier of New South Wales) Sir William McKell has pointed out, there is no guarantee as to when she will act. Sir William said that the queen is a very busy woman. She may be difficult to contact. She can always ask for more information. So by the time she acts, the governor-general could have ensured an election takes place.

Indeed, the very idea that a prime minister could be automatically granted the removal of a governor virtually negates the reserve powers of the governor-general. Governors-general would be all but powerless if they could be removed any time they resisted the prime minister's will.

Who shoots first?

At this point, we refer to a curious feature of this hurriedly put-together constitution. Yet another example of the lack of care, and the need for public discussion in the drafting of such an important document. This is the practical difficulty of both the president being able to dismiss the prime minister and the prime minister being able to dismiss the president. This has just not been thought through. Who moves first will be absolutely crucial. Would a prudent president and prime minister carry signed notices of dismissal to future meetings, might either of them even backdate a notice of dismissal? There is not even the need fora witness on the prime minister's notice! If they met alone, there could be different recollections of what had happened.
Hadn't the authors of this considered what had actually happened in 1975? Because in 1975, Gough Whitlam and Sir John Kerr had different recollections of the events in the study at Yarralumla.

Sir John's claim that Gough Whitlam rose looked at the phones and said, "I must get in touch with the palace," Whitlam denies. He says:
This is a concoction and an absurd one. I had been in the governor-general's study at least half a dozen times when Lord Casey was governor-general and scores of times while Sir Paul Hasluck and Sir John Kerr had been governors-general. While Sir Paul and Sir John had made telephone calls and received them while one was there, I had no knowledge of the procedure for making calls. I did not know the number of the Palace. I had no staff with me. He had his aides, his secretaries, his telephonists, and his police. I was trapped in an ambush; my sole instinct was to escape, to depart at once from the place where the deed had been done and the presence of the man who had done the deed.

So Sir John Kerr says that Gough Whitlam was about to tele¬phone the queen to have him dismissed, and Gough Whitlam denies this. At a meeting in a similar crisis and under this republic, establishing who moved first could be equally disputed. The former Chief Justice Sir Anthony Mason worries about the ability of either to sack the other in a "who shoots first" scenario. Professor Cheryl Saunders writes that this ludicrous situation is, to say the least, undignified.

In the event of both claiming to have dismissed the other first, the president would appoint a new prime minister, and the old prime minister would have the acting president he wanted. In other words, two claiming to be prime minister and two claiming to be president, and, it should be stressed, two claiming to be commander-in-chief. That the phenomenon of two or more persons claiming to be president has happened in other countries is surely a good argument not to adopt a half-baked constitutional model that would allow this to be repeated here.

Republican Critics

It is not surprising that this model has been criticised by consti¬tutional experts, many of them republicans. The following come from the 1998 University of New South Wales Law Journal Forum:

The convention's model is flawed. Its presidential removal mechanism is both structurally unsound and entirely inappropriate. Professor George Winterton

I remain sceptical about the enduring qualities of the final recommendation for the so-called bipartisan appointment model. Professor Cheryl Saunders
It is a weak model with a number of serious deficiencies. Professor Greg Craven

This model does not prevent a politically motivated dismissal of a president. Professor Linda Kirk

In summary, the conclusion must be that the extraordinary, unprecedented power to remove the president is unknown in any democratic republic. And in no way does it replicate our existing system.

AND THE CONSEQUENCES?

The model, let us remember, is not based on carefully considered, dispassionate and extended discussion. It was scrambled together in the last few days to get the maximum support at the convention. It is full of holes. The most worrying aspect is the failure of its proponents to admit now that it is a model unworthy of our great democracy. Remember that the Australian Republic Movement (ARM) refused to admit, for five years, that the first Keating—Turnbull republic was a recipe for instability. We have to assume that by now, the proponents must be well aware of the fundamental and dangerous concentration of power and the potential for instability that flows from this model.

Real Republican former independent MP Ted Mack says many in the Australian Republic Movement (ARM), the media and academia are well aware of this. (Sydney Morning Herald, 24 December 1998)

And success in the referendum will result in pressure for other changes, apart from those changes that could occur because of a failure to prepare for them properly, such as our membership in the Commonwealth of Nations. Certainly, the flag, the chief national symbol, is next on the agenda. As Bill Hayden has said, if the referendum is successful, "the same gang of activists will be on the campaign trail to change the flag".

The states, too, are on the agenda. A minister in the Keating government, Alan Griffiths, pointed this out at the beginning when he said: "The republican issue is a threshold thing, to get people's attention ... the real business was achieving competitiveness in government arrangements which might, in the long run, entail the abolition of the state. (Australian Financial Review, 5 April 1993) But the worst consequences may be those which could flow from governmental instability that the model allows.

As we have seen, a president and a prime minister can sack each other. The president could say his dismissal was invalid, or he was first and appoint the opposition leader as prime minister. An acting president could claim to be in office. There would be challenges in the high court that would inevitably become politicised. In turmoil, with increasing civil disorder, both "presidents" (and perhaps both prime ministers) could call the Army for support. Whom should the Army obey?

Eventually, supply would run out, with government services and payments curtailed. This scenario wasn't dreamt up as part of a "scare campaign". It comes from the experiences of other countries that have drafted or changed their constitutions without thinking carefully about the consequences. Pakistan has actually lived through similar events over the last few years.

So it would obviously be more difficult under the Keating–Turnbull republic to resolve a 1975-style crisis. It would have far more serious consequences.
In 1975, the Australian economy was cordoned off from the world. Now all the regulatory barriers are down. As Paul Keating discovered a decade ago when in the course of warning about the state of the economy on talk-back radio, he uttered just two words, "banana republic". Foreign money was flushed out of Australia, and international confidence collapsed. The dollar Plunged.

Australia cannot afford the luxury of constitutional instability. The resulting international judgement would be harsh and imme¬diate. As the dollar crashed, as Standard and Poor and Moody's reassessed their rankings, most Australians would be the losers. The only people standing to gain would be speculators on our currency and those who buy up our property cheaply.

So the cost of this republic would not only be the $120 million to get to the referendum. It will not only be the hundreds of millions to change the currency, the uniforms, to upgrade everything; to pay for the president, deputy presidents, and the state presidents, who, both in office and retirement with their new status, will expect to be maintained in greater style than our retired governors and governors-general. It will be the cost to the nation of giving up its constitutional stability.

Australians are being engulfed with the argument that this change is only symbolic, only about an Australian head of state. That is not what it is about. It is not only about getting rid of the queen at any price. It is about a major transfer of power in Australia.

 

The 1999 Referendum.

The republican model, the Keating Turnbull republic, was then referred to the people.

This emerged in the last days of the Constitutional Convention. This was the Second Keating-Turnbull Republic, one which was highly authoritarian and anti-federal and which was suddenly pulled out of the hat. After telling us in 1993 that there was an almost universal view that the President was not to hold office at the whim of the Prime Minister, the ARM (Australian Republican Movement)  now proposed the first republic in recorded history where it would be easier for the Prime Minister to dismiss the President than his cook! Not developed from the point of constitutional principle, this model was formulated only to procure the maximum votes from the politician delegates so as to obtain a majority vote at the Convention. And it failed even in that.

But as the constitutional model was chosen and preferred by the largest number of Republican votes at the Convention, the Prime Minister honoured an election promise and put that model to the people.
In the resulting campaign in 1999, the Yes case coalition was to come out with at least six conflicting messages.

Mr Malcolm Turnbull and Mr Greg Barns of the ARM (Australian Republican Movement) said that if you voted Yes, there would be no substantial change to the Constitution.

Mr Thomas Keneally, the author and spokesman for the ARM (Australian Republican Movement), said that if you voted Yes, the result would be the biggest structural change to the Constitution since the Federation.

Mr Andrew Robb, former Liberal Party Director and spokesman for Conservatives for an Australian Head of State said that if you voted Yes, you would escape from the horror of ever being allowed to choose the President. You would never have to elect the President, principally because you would never be allowed to do this.

Mr Kim Beazley said that if you voted Yes, he would allow you to decide — at some later time and if he became Prime Minister — whether you would wish to be allowed to elect the President.

Sir Anthony Mason and Mr Jason Li seemed extremely worried by an imagined "rule" that the Governor-General never appears with the Queen. This, they said, proved the Governor-General not to be that Head of State which the Keating Government said he was and held him out to be inferior to foreign governments. (The lack of such a "rule" was exposed by Sir David Smith when he drew attention to an official photograph of a State occasion showing the Queen sitting next to the Governor-General and with Sir Anthony in the group!)

Mr Jason Li also seemed to be promising greater sexual freedom, although whether this would be before or after the republic was installed was not clear.
Out of this cacophony, out of these contradictory acts and voices, there was only one single theme. It was to get rid of the Queen. And, clearly not understand the institution of getting rid of the Australian Crown. At any price.

Even at the price of an unwise, unprecedented, undemocratic accrual of power. Even at the price of constitutional and government instability.

Behind this Yes case was a grand coalition of unusual bedfellows:

Against that, not a lot. Only a band of men and women, almost all volunteers, whose ranks by the 6 November 1999 grew to over 50,000 Australians. Almost a parallel, single-purpose political party! Kerry Jones (2000) proved a superb leader of that campaign, with a rare command of advocacy, political, organisational and financial skills. Unlike the Australian Republican Movement, Australians for Constitutional Monarchy has only had two Executive Directors, Kerry Jones and Tony Abbott. (It has had only two National Convenors, Justice Lloyd Waddy and myself) In contrast to ACM's grassroots organisation, it was all so easy for the ARM (Australian Republican Movement). For its foot soldiers, all it had to do was ring the Secretaries of the Australian Labor Party and the ACTU.

The Results

When I saw the patently flawed Republican model adopted at the Convention, greeted by the headline "It's all over bar the voting", I had expected that the Yes vote in the referendum would have even been lower than that recorded on 6 November. We were subsequently warned that the electoral system would probably make the Yes vote larger than it actually was. First, there is no verification of recent registrations. Secondly, voting is no longer restricted to one polling place, and there is no means of preventing voting in two or, indeed, several places, especially in inner metropolitan electorates where anonymity is virtually guaranteed.

In addition, I did not expect that so many people in politics, the law, the media and elsewhere would throw themselves with such enthusiasm behind such a bad model. I had not expected that so much of the media would so unashamedly campaign for such a flawed model in news columns and broadcasts. Ted Mack, the wise man, foresaw that they would do so. He warned me at Corowa, well before the campaign, that they would do so because so many relished the centralisation and concentration of power that the model offered.

Nevertheless, we in the No case had believed all along that Australians, as Richard McGarvie puts it, are wise constitutional people. We had confidence in the people of Australia. The result was a landslide. Taking into account informal votes, and non-voters, about 43% of the electorate voted Yes. While Republican lawyers assumed that constitutional success for the Yes case required that it capture four states, all six States voted No, and the Northern Territory voted No. Only the Australian Capital Territory voted Yes. (A better view, held by former Chief Justice Sir Harry Gibbs and Richard McGarvie, was that the change was so fundamental all six original states needed to agree.)

Every regional electorate voted No. Every rural electorate voted No. Every truly outer suburban electorate voted No.  Seventy-two per cent, 72% of all electorates voted No. In South Australia, 75% of electorates voted No. In Tasmania, 80%, and in Western Australia and Queensland, 93%!

When I was interviewed on the Sydney Opera House balcony by the BBC early in the evening of 6 November, above the marquees displayed below to welcome Republicans celebrating their victory, I said that it already looked like a landslide. Young Republican Jason Li, who was also being interviewed, looked at me in utter amazement.

The campaigning and its consequences — some personal experiences - By David Flint

After the referendum, Malcolm Turnbull (2000) published his referen¬dum diary Fighting for a Republic (which Julian Leeser said should be renamed Whingeing for the Republic). In it, Turnbull has some harsh words to say about me. Not only am I lacking in humour and a carica¬ture of a monarchist — I also have a "pseudo-British" or a "pseudo-English" accent. I am extreme, untruthful, raising one scare after another. I am not at all a constitutional lawyer (although I have taught and published in the area). Then, on 2 November 1999, Turnbull condoned a very personal attack on me by his campaign director Greg Barns who, he wrote, was clearly in an "if you see a head, kick it" mode. Turnbull justified this because campaigning rationally and courteously had not done the ARM (Australian Republican Movement) much good!

But his most cruel comment, which cut me to the quick, was that my book for the referendum campaign, The Cane Toad Republic, would end up in the remainder aisle. Imagine how I felt when I was subsequently told by a friend that the University Co-op was offering Mr Turnbull's Fighting for the Republic at a 50% discount!

The Cane Toad Republic has given me some difficulties since it was published in 1999, but the comments I have received from readers have made these difficulties more than worthwhile. At a hearing of a Senate Estimates Committee following the referendum, every detail of my travels when campaigning during the referendum campaign was put under the microscope. Someone — I cannot imagine who would have bothered to do this after the referendum — had very carefully worked out my itinerary, mainly on the weekends or on leave.

I was asked at the beginning and the end of the questioning who had paid for my visit to Canberra for the launch of my book The Cane Toad Republic on 12 October. I first replied that I did not believe I was in Canberra that day. At the end of the interview, the Senator read a story about the book launch in The Canberra Times. "Does that refresh your memory, Professor?" Eventually, I had to point out the obvious that just because a book launch is reported in The Canberra Times doesn't mean the book launch was in Canberra. When I pointed out that the book launch was in Sydney, the penny dropped. The questioning moved to other issues.

In the following Saturday edition of The Sydney Morning Herald, Mike Carlton said that "we" don't have much of a brief for that cockalorum, Professor David Flint, but that I am a smooth operator. In contrast to Malcolm Turnbull's Fighting for the Republic, no newspaper published extracts from or even reviewed The Cane Toad Republic!

My literary efforts did, however, attract some media attention. There was a press conference after the launch, which broke up in uproar because a TV reporter began chanting, over and over, and at the top of his voice, "We want section 2" (of the Constitution)!

Then there was the odd behaviour of a group of journalists, led by one from The Age. Apparently, they had received a tip that I had used the advertising power of the No Case as leverage to get an interview on Melbourne radio to promote my book! Now the proceeds of the book went to ACM (Australian Republican Movement), so there could be no personal profit for me. But the thought that I needed the leverage of the No case advertising budget just to get one talkback interview or that I would have used such leverage was preposterous. I was not a member of the government-appointed No case committee, and I had no control over that particular budget. As for the ACM, our funds were so stretched we could not even afford radio advertising in Victoria!

When the reporters learned this, it only encouraged their fantasies. They then came to the extraordinary conclusion that a substantial proportion of the official No case budget had actually been appropriated to promote my book! A lot of time and effort was thrown into trying to show this, all to no avail because it was a fantasy.

The fact is that not a cent of the $7.5 million No case funds went to the promotion of my book. And if the figures are ever published, I have no doubt that they will show how much more effectively and professionally the No case funds were spent in actually getting advertising time and space than those of the Yes case. The No case was undiluted, clear and simple; the ARM (Australian Republican Movement) spent a lot of money on a series of confusing and conflicting messages, the best being those involving former politicians. Seeing those former adversaries Malcolm Fraser and Gough Whitlam together, with Gough saying, "It's time, Malcolm", must have moved many uncertain voters to the No camp.

 

From Federation

The Federation of Australia was a Unique Achievement:


Federation was thus the sixth pillar of the nation.

Australia has been able to enjoy a peaceful, limited government, both in times of peace and war, as well as during times of prosperity and depression, thanks to the Federal Constitution. This document has allowed the nation to transition from being a self-governing Dominion within the British Empire to achieving full independence as a Realm within the Commonwealth. The Federation was established on the principle of the new entity being an indissoluble Federal Commonwealth under the Crown, which remains a fundamental aspect of the nation's federal structure. While there have always been individuals who sought to remove the Crown, these individuals were not elected to the nineteenth-century conventions.


For almost all of the first century of the federation, no Australian leader had questioned the place of the Crown in our constitutional system.

Paul Keating's Austalian Banana Republic
Paul Keating's Australian Banana Republic

In 1993, the Australian government, led by Prime Minister Paul Keating, initiated efforts to explore the potential for Australia to transition to a republic. A Republic Advisory Committee, helmed and chaired by Malcolm Turnbull, was established to conduct the necessary research.

The committee mandated that all appointees must demonstrate a prior commitment to removing the Australian Crown, regardless of any advice sought from the Premiers regarding appointments.

This report presents insightful research regarding Republican models. Back in 1995, the prime minister expressed the government's intention to pursue a proposal to modify the Constitution by eliminating the monarchy. Under the new system, the president would be selected through an election and can be removed through a two-thirds majority vote during a joint session of the Senate and House of Representatives.

The proposal did not move forward due to the defeat of the Keating government in the 1996 election.

In 1997, in pursuit of an election promise, the Howard government called an election for half of the places to the Constitutional Convention, which met in 1998.

The remaining members were appointed and were mainly ex officio. By their voting at the Convention, it was clear that a majority of the appointed members favoured removing the Crown.

Although the Convention voted for change, the model preferred by the overwhelming majority of Republican delegates could not command a majority vote.  To the approval of the Republican movement and most of the mainline media who were campaigning for change, the Prime Minister ruled that this would be the subject of a referendum.

In 1999, a referendum was called in which the people were invited to vote on this republican model. This was the referendum model, which had the overwhelming support of the Republican delegates to the Constitutional Convention. Most of the mainline media and most of the sitting politicians campaigned in its favour.

The referendum was defeated nationally (55:45), in all states and 72% of electorates. After the defeat, the ARM and the Labor Party called for a national plebiscite to be held in which people would be asked whether they wanted Australia to become a republic. No details would be revealed.

If this were passed, another plebiscite would follow in choosing between different forms of republics. The existing constitution would be excluded from that vote. After the second plebiscite, a  referendum on the preferred Republican model would follow. After this, a conference was held at Corowa, which endorsed this plan.

Senate Inquiry was established in 2003, which produced a  report just before the 2004 election, Road to a Republic. This endorsed the ARM-ALP proposal for two plebiscites, but Liberal Senator Marise Payne, an ARM office bearer, dissented from the proposal for two plebiscites.

Then came a Republican “Mate for a Head of State”  campaign, which failed to create any support for a renewed campaign, and then the 2020 Summit, whose governance panel, after minimal discussion, voted an improbable 98:1 in favour of Australia becoming some vague, undefined republic.

Shortly after the Summit, the Morgan Poll reported the lowest support for a republic in 15 years, with very low support among the young.

Republic Advisory Committee RAC 1993

In 1993 Prime Minister Paul Keating established a Republic Advisory Committee (RAC) to advise him on the various options for minimal change necessary to bring about a republican government in Australia. The RAC's terms of reference stipulated that it should not address any broader issues regarding other areas of constitutional reform or the normative question of whether Australia ought to become a republic. It should also not make any final recommendations but rather address the advantages and disadvantages of the possible approaches to a specified list of matters. (RAC, Vol. 1, p iv)

So the Republic Advisory Committee was not intended to debate the advantages or disadvantages of a republic over the existing system. Its formation reflected Keating's adversarial style. He once argued that the first question about a republic was: "Do you support an Australian republic?" Only if you supported such an entity were you to be admitted to the forum that would discuss the form of the republic. This theme was brutally applied both in terms of reference and of the membership — totally Republican — of the RAC. It was chaired by Malcolm Turnbull, the leader of the Australian Republican Movement.

When the prime minister gave his response to the report, he endorsed the desirability of Australia becoming a republic on the basis of a "minimal" change to the constitution. He addressed five areas of change. The principle components involved:

It was Keating's stated intention that the transition to a republic would be a small step, albeit a highly significant one, with minimal disruption to the system by which Australia is governed. There was dissent in the Republican ranks, however, as to just how small the step being proposed was. One democratic-republican, the late Professor Patrick O'Brien, explained:

In his speech, Keating repeated the false claim that the move from a constitutional monarchy to a republic was a small step. It is a giant leap. In itself, the institution of a republic means the institution of a new constitution and a new political order. Whether it is a giant leap forward or backwards, therefore, depends upon the constitutional distribution, weighing and checking and balancing of power and authority among the people, the parliament, the executive, the bureaucracy and the High Court. (O'Brien, 158)

It was quite clear that Professor O'Brien saw the Keating–Turnbull model as a giant leap backwards.

 

After Prime Minister Keating’s response to the report of the  Republican Advisory Committee, a model for the Australian Republic emerged, the first Keating -Turnbull republic.

APPOINTING THE PRESIDENT

The first Keating–Turnbull model has met with both practical and ideological criticism. Despite strong electoral support for popular elections, the Keating government advocated parliamentary appointment and dismissal. Clerk of the Senate Harry Evans has argued against this method of appointment on principle:

Most people, not intellectuals, are able to detect the massive contradiction at the heart of the elite orthodoxy: the monarchy must go partly because it is undemocratic, but the people must not be allowed to choose the replacement because they would stupidly make the wrong choice. (News Weekly, 29 July 1997)

Bill Hayden, a former governor-general, warns of the practical effect of election by the special parliamentary majority:

Those who believe a president elected by both Houses of Parliament would attract nominations from the 'best people in the community', need to be reminded of the adversarial structure of our political system. The hectoring style of so many Senate Committee hearings is illustrative of the sort of grinding and very personal inquisition to which a nominee could be subjected. The process here would make the Supreme Court confirmation hearings of the USA Senate, such as in the cases of Dinks and Hill, look like a suburban manse morning tea party. The prospect of such an experience would discourage all but the stout-hearted. (Hayden, 548-549)

The election of the president would be by a joint sitting of both houses of the federal parliament. So the greatest say would be to the most populous states, effectively the Canberra, Sydney, and Melbourne axis. A two-thirds majority would be required. It would be a strange election, at least outside of the totali¬tarian countries. There would only be one candidate, just as in the old Soviet Union. The thinking was that at least the government and opposition would have had to support the candidate. This is not guaranteed. The Fraser government came down to having a two-thirds majority. A change by legislation of the method of election of the Senate could easily increase the likelihood of governments commanding this majority. This does not need a constitutional amendment. It can be done by legislation.

In the meantime, the attempt to force an agreement between the government and the opposition assumes that both will act in the best interests of the nation and choose the best candidate. What will obviously happen is a deal. In return for support for a candidate, the other side will agree to support some measure or not take some action – secretly, of course.

Australians have already seen and are disenchanted by this wheeling and dealing. The American founders saw the danger of deals between politicians and with the candidate, both in election and re-election. So, they decided to remove the politicians from the presidential election process.

THE CANE TOAD REPUBLIC

And even a single candidate election is still an election. As minister Bronwyn Bishop says, in an election, the candidate has to stand for something – his or her platform. By winning, he or she has a mandate. This is totally unlike the non-political governor-general who has neither a platform nor a mandate. So what do we have under this republic? A politician chosen by politicians. And with an enormous mandate – two-thirds of parliament. The prime minister, by contrast, may have a little over half the house and a minority in the Senate. Who would have the biggest mandate?

DISMISSING THE PRESIDENT

Perhaps the most serious problem with the first Keating–Turnbull republic was that raised by one with first-hand experience of viceregal office, Richard McGarvie, who warned against the threat to democracy that would result from instituting a head of state who was not readily dismissible:

The fatal flaw of the models many Republicans still support is that a president elected by parliament or the people could not be promptly dismissed. That sanction for breach, which gives binding effect to the convention of exercising the great powers of the head of state as elected ministers advise, would disappear. Oppositions do not support governments. No federal government for fifty years has had that majority. Even if it did, a president could stymie dismissal by exercising the power to dissolve or adjourn (prorogue) parliament. Our democracy depends on the sanction of dismissal and if it evaporates so will democracy. (Adelaide Review, December 1997)

Professor Flint argued for ACM that without codification, this proposal would import into Australia something like the French Fifth Republic, where a powerful president "cohabits" uneasily with a parliamentary prime minister. The French have such a system only because their efforts to have a US-style republic or the Westminster system failed. The ARM's reaction to this and other ACM criticisms was to denounce our arguments as scare-mongering.

CODIFICATION OF THE RESERVE POWERS

The basis of the new presidency under the Keating government's model was that the new head of state would simply "slip in" to the role presently carried out by the governor-general. Republican Professor Patrick O'Brien argues that the governor-generalship cannot be stripped of its monarchical overtones:

Abolish the crown, and you thereby also abolish the office of governor-general. Its political and metaphysical functions cannot simply be transferred to another office, regardless of what it is called. These powers are inseparable from the crown. The fashioners of the United States Constitution understood this simple point. Hence, the creation of the brand new executive offices followed two decades of the most intense, polemical debate about the future constitutional shape of their proposed republic. (O'Brien, 159-160)

The staunchest of Republicans and the staunchest of monar¬chists find themselves bedfellows in their common opposition to the Keating government's attempt to graft a republican institution onto our monarchical constitution. As Professor Lane observed, rather than attempting to graft a republic onto a monarchical constitution, republicans should develop a new constitution. Justice Lloyd Waddy, as Convenor of ACM, wrote that the way to achieve a republic is a radical rewrite of the constitution as the Americans did, not merely preserving the present arrangements but severing them from their source of legitimacy:

When I begin most speeches on republicanism, I make two basic state¬ments. First, I say, Of course, we can have a republic if a sufficient majority votes for it. If the Americans can run a republic for two hundred years with only one (very bloody) civil war, Australians could run two republics before breakfast. Secondly, I add, if you want me to nominate a republican system I would presently favour, it is that of the USA; we know it is safe and that it works in its way, and it has done so for over two hundred years. But I must confess that I believe the operation of its system of government, with an executive-style presidency, is infinitely inferior to our own. (Grainger and Jones, 101)

THE CANE TOAD REPUBLIC

One of the greatest sticking points of Prime Minister Keating's speech responding to the RAC's report, however, was his preferred treatment of the reserve powers of the crown – the powers which do not require the advice of the ministers of the crown. Under the first Keating–Turnbull republic, the reserve powers of the governor-general would continue to be exercisable by the president, but they would remain uncodified. Rather, a provision would be inserted into the constitution, providing that the informal conventions governing the operation of the vice-regal reserve powers – whatever they may be – would continue to operate to bind the new head of state.

The failure to codify the circumstances in which the reserve powers could be exercised was deemed catastrophic by some Republicans. Writer Donald Horne explained shortly after the Keating proposal was announced:

Since a president would be harder to get rid of than a governor-general, it is prudent for us to change our Constitution to say what powers a president has and, therefore, by inference, what powers a president does not have ... after a referendum, we would insert into the Constitution a section saying that, except in specified circumstances, the president would act only on the advice of the government. (Sydney Morning Herald, 27 October 1995)
He said: "Without a clear statement of the president's powers, even I will vote No in a referendum." (Sydney Morning Herald, 3 June 1995)
Malcolm Turnbull similarly favoured codification, although he supported Keating's method of appointment. He has emphatically declared that: "I support full codification of the powers of the president." (Turnbull, 166)

The ARM Platform adopted a similar stance: "The functions of the president shall be spelt out in the Constitution." There appear to have been two grounds for arguing against codification. One revolves around the difficulty of the exercise. As Senator Gareth Evans explained, the "definition [of the present controversial unwritten conventions would be] a labour of Hercules. Reformers would have to devote thirty years to the task to have an impact ... Frankly, I think the task is impossible." (Australian Financial Review, 9 May, 1995) In other words, the problem of codification already exists in the present arrangements and concentration on the problem will only hinder progress towards a republic. Professor O'Brien argues that however desirable and effective non-codification has been, it is a creature of historical developments that will necessarily disappear.

The removal of the crown, he says, "will also mean the removal of these royal prerogatives and reserve powers, whatever they are". He asks in whose name will the powers be exercised —the prime minister's, the parliament's, the high court's, or the people's? What will be the source of those powers? How are they to be defined, and in relation to what? What will be the due processes governing the office and its relationship with other major institutions of government? Surely, he writes, these and numerous other questions must be answered to the satisfaction of the people and be codified. And if these powers are not con¬ferred upon the president by a majority of the people at a free election, the president would be deprived of the respect of the people. The incumbent will correctly be perceived as the parliament's and the executive's poodle.

It appears that the proponents of this republic have thrown up their hands in despair. They say that codifying the reserve powers is far too difficult. But if Australia is to become a republic, surely you have to set out the powers of each of the offices of the republic. The crown has been removed, and these conventions depended on the crown for their lives. Some might say that it is more a matter of luck than design that Australia's constitutional arrangements are as they are. But is that not the very advantage of evolution over revolution? Were it not for particular historical developments, we might not have the flexible arrangements we enjoy now. A republic will and must change the existing structures. This was played down by the Keating government to make the product appear more marketable. Yet without the crown, we have an inherently unstable mixture.

On the one side, we have those, such as Dr John Hirst, the his¬torian who still wants the flexibility of uncodified powers to be carried into the Keating–Turnbull republic. On the other side are Horne and O'Brien and the warning that codification is necessary if a new institution is to be established. The crisis is between the desirability of flexible arrangements and the knowledge that a new order must provide all its own rules, not rely on the conventions of the one it supersedes. It is clear that Republicans cannot have it both ways.

The Keating–Turnbull model expects that the new president would represent Australia overseas and be the embodiment of Australian identity.
High Court Justice Michael Kirby, for instance, rejects the suggestion that the president should, of necessity, represent the nation's interests overseas in a way the queen does:

To the complaint that the Queen is not seen as a representative of Australia when overseas, a ready answer may be given: the Prime Minister should be the main representative of Australia overseas. We can survive the shame of a nineteen-gun salute. Our system is Parliamentary. That means a Prime Minister. Let him or her be Australia's representative overseas. And in the unlikely event that the people of Asia, or anywhere else, care the slightest about our constitutional arrangements, let them mind their own business. Just as we mind ours in relation to their constitutions. Such things are the product of history and sentiment and are not always susceptible to easy explication to neighbours.

And when it is lamented that the queen never represents us overseas as Queen of Australia, a further answer is obvious. Her Australian ministers have never advised her to do this. In fact, the governor-general has occasionally represented us, but more frequently, it has been the role of the prime minister and the ministers. The other key role of Keating's president is to be the embodiment of the Australian national identity. Chancellor of the University of Sydney Dame Leonie Kramer explained in a speech at the ACM launch on 4 June 1993 that there can be no one exhaustive expression of such an identity:

As for the question of identity, suffice it to say that there is no reason why individual Australians should subscribe to some common notion of what it is to be Australian. There is room for all the differences of opinion that a mixed society such as ours can contain ... what does matter is that we share common values relating to democratic policies and practices, representative government, a non-political legal system, private enterprise, educational systems committed to high standards in teaching and learning, equality of opportunity, and tolerance of others' views – in short, a free society. The best guarantee of the maintenance of these values is our indigenous form of constitutional monarchy.

In fact, to most Australians, the national identity is about respect for democracy, the rule of law, tolerance, English as the national language and freedom of expression. For the small elite, a new presidency may seem to be a strong assertion of Australian identity and independence. But this is not at all true of the rank and file. As Geoffrey Horne said at the 1998 Constitutional Convention:

Becoming more competitive in trade with our Asian neighbours ... would assert our freedom and independence more. Having the Wallabies beat the All Blacks or the Socceroos reach the World Cup finals would more effectively assert our independence as a nation, and fixing unem¬ployment and domestic matters would have more effect in asserting ourselves as free people in an independent nation. (Report of the Constitutional Convention, 2-13 February 1998, Vol III)

THE STATES

Our final problem before leaving the first Keating—Turnbull republic is its treatment of the states. The states were to be involved in two ways. The first is that each state forms its own constitutional monarchy distinct from each other and the commonwealth. If only the part of the constitutional monarchy at the federal level is abolished, the question arises as to whether this would have any impact on the continuity of the six-state monarchies. If not, ought the states be forced to change their constitutional arrangements? Secondly, the question arises as to what role, if any, the states might have to play in the changes required to bring about a republic at the federal level, even if no change were to occur at the state level.

It was the view of the prime minister that there would be no necessary implications for the states were the commonwealth alone to become a republic, and the government had no intention of exerting any pressure on the states to make their arrangements consonant with those of a new republican commonwealth:

It is not our intention that the government's proposals should affect the Constitutions of the Australian states. It would be up to each state to decide how they would appoint their respective heads of state in the future. It is reasonable to expect that if the Australian people opt for an Australian head of state, the states would follow suit. But the question would be for each state to decide.

In this way, the difficulty of forcing the states to change was avoided, and an ordinary section 128 referendum would be suffi¬cient to establish a federal republic requiring a national majority and a majority in only four rather than all six states. However, there are good arguments that, this being a fundamental issue, the consent of the six states is necessary.

Should such a referendum be carried with only four states' support, it is conceivable that the legislation might be contested by one of the other two states on the basis that there is only one crown in Australia (albeit with seven manifestations). The destruction of that crown, it might be argued, would go to the heart of the original compact, thus constituting a renegotiation of the terms of the initial "indissoluble" compact to establish an indissoluble federal commonwealth under the crown. Furthermore, if the crown is one with various manifestations rather than seven separate crowns, destruction of it might constitute an action by the commonwealth disabling a state to operate in a fundamental sense.

Support for such a conception of the crown is to be found in Justice Rich's approach in Minister for Works (WA) vs Gulson (1944), 69 CLR 338 at 356, where he explains:

It is by the crown that all legislative and administrative authority is exercised throughout the Empire, although in each constitutional area, such authority can be exercised by the crown only through the agencies of the appropriate Parliament and the appropriate group of constitutional ministers so that legalistically, it would be more strictly accurate to speak of the state of Western Australia in right of the crown than of the crown in right of the state of Western Australia.

It is clear that the single indivisible imperial crown under which Australia federated had become several crowns, but only down to an Australian, a Canadian, or a New Zealand crown. The crown in Australia is one and indivisible. If it were the seven crowns that the RAC suggests, the indissoluble federal common¬wealth established in 1901 would be effectively dissolved. Each state could go its own way. This is a devastating result unless you try to overcome this by constitutional amendments dividing the Australian crown seven ways and abolishing one of them.

These questions could require further determination by the high court, and the first Keating—Turnbull republic was criticised by both monarchists and republicans on these grounds. For five years, the ARM insisted on the rectitude of this model. They scoffed at any criticism. And then, in the last days of the Constitutional Convention, without any adequate explanation, they changed the model to prove that the Australian president, unlike any other in the world, would hold office at the whim of the prime minister.

Also, See the Second Referendum Model 


Australian Constitutional Convention of 1998.

In early 1998, the Old Parliament House in Canberra, Australia, became the centre of a significant event known as the Constitutional Convention. The purpose of this event was to address a critical matter that would impact Australia's future, namely whether the country should become a republic or maintain its current system. Esteemed personalities from various backgrounds gathered to engage in constructive and thought-provoking discourse. However, as the summer of 1998 approached, Robert Manne, an Associate Professor in Politics at Monash University and a regular columnist, expressed surprise in the Sydney Morning Herald (1 February 1999) about what he described as "infighting" within Australia's Republican Movement (ARM). Even if the Republican camp were united, he noted, persuading a majority of Australians and a majority of states during the upcoming referendum would have been immensely challenging. However, with an "internally divided, self-lacerating Republican Movement," these challenges would be insurmountable. Manne concluded by saying that "this fatal contradiction at the heart of Australian republicanism had emerged in a way no Australian monarchist at the Constitutional Convention could have predicted."

It's not uncommon for Republicans to have disagreements amongst themselves. History has shown similar conflicts between different political groups, such as Cromwell's Roundheads and the Levellers, the French Girondins and Jacobins, the Russian Mensheviks and Bolsheviks, and the Stalinists and Trotskyists. The 1998 Constitutional Convention also saw clear and unsurprising divisions. Despite this, Manne seemed surprised by the outcome.

It is important to note that the terms "republic" and "republicanism" have multiple interpretations, rendering them impractical for use in discussions pertaining to Australia's political system. Despite this, there is a persistent call for a plebiscite on the matter of Australia becoming a republic, as well as a continuous discourse in politics and media regarding "the" republic. However, the notion being presented by the Australian Republican Movement (ARM) is tightly regulated, with no place for the monarchy. In other words, their objective is to remove the monarchy at all costs. This has become increasingly evident in recent times.

Authentic Republicans hold a deep-seated belief in the importance of fostering people's engagement and involvement in the workings of government, in contrast to the ARM's objectives, which include limiting such participation. Additionally, they place great emphasis on the implementation of checks and balances as a mechanism for ensuring that power is regulated effectively. It is worth noting that there are several similarities between true Republicans and constitutional monarchists, as constitutional monarchies often exhibit a high degree of democratic governance. This underscores the shared focus on ensuring that power is distributed in a manner that is responsive to the needs and desires of the people.

Real Republicans, unlike the ARM, do not focus solely on the crown. Ted Mack, a prominent real Republican from New South Wales, is an example of this. During his time as Mayor of North Sydney, he successfully implemented Citizen Initiated Referenda. He has also opposed the generous superannuation funds for MPs and has resigned from parliament twice just before becoming eligible for a pension. Mack's true Republican beliefs extend beyond these issues and include promoting popular involvement in government, including direct elections.

In the midst of the 1998 Constitutional Convention elections, Australia's Republican Movement (ARM) presented a proposal that aimed to establish a direct presidential election process by the people. This suggestion proved to be quite popular and managed to secure the ARM more votes. Furthermore, it also allowed the Republican factions to unite and work together towards a common goal. Although the proposal held great promise in terms of its potential benefits, it ultimately failed to come to fruition.

What were the origins of the Constitutional Convention? It all began in 1995 when Paul Keating, the then-prime minister, took a closer look at the 1993 report of the Republic Advisory Committee, which was chaired by Malcolm Turnbull. After thoroughly reviewing the report, the government announced its policy on June 7th, 1995, stating that Australia should become a republic by 2001. The very next day, John Howard, who was then the leader of the opposition, proposed a People's Convention. This suggestion had also been put forward by his predecessor, Alexander Downer. Interestingly, while constitutional conventions played a crucial role in the federation of Australia, none had been held in the 20th century.

Until 1998, proposals for constitutional change came from governments, sometimes advised by specialist bodies. The Republic Advisory Committee, consisting only of Republicans and bound by its terms of reference to come up with a Republican model, was the most partisan of these. Although often criticised for "manipulating" the process, the revival of the convention as an instrument for constitutional review was a democratic approach. And it was much more generous and fair to Republicans than the former prime minister had been to monarchists and other constitutionalists.

The convention was made up equally of elected and nominated delegates. Some commentators suggested that because of the nominated delegates, the convention was stacked by the Howard government. This is untrue. A substantial number of places were reserved for nominees of the state and federal parlia¬ments, which ensured a wide range of representation and views. Many, if not the majority, turned out to be Republicans.
It was made clear that if a republican model were adopted by the convention, it would be put to the people. Alternatively, there would be an indicative plebiscite offering choices.

The campaign that preceded the election of delegates demonstrated that there is no level playing field between the principal groups, the ARM and the ACM. The ACM estimates that the ARM outspent it in advertising by a factor of ten –about $ 5 or $6 million against $500,000. The ARM was able to broadcast a large number of television advertisements. The ACM had none. In the voluntary postal ballot, the ARM had the resources and the manpower of the ALP and ACTU behind it, evidenced by the high voting returns in safe Labor electorates. Many ALP MPs used their offices to mail out encouragement to voters. This was replicated by a few coalition MPs in favour of the ACM, but only in South Australia. And even then, the coalition MPs were divided, only some supporting the ACM. But the ACM led the vote in South Australia!

Apart from some small newspaper advertising, the ACM advertised on the radio. Its campaign material was circulated by its own supporters — not by a compliant political party. Of the other groups, only Clem Jones' Queensland Republic Team advertised extensively. ACM was warned that it could lag up to 20 per cent behind the ARM. Such would be the effect of the ARM's advertising, the support it had enjoyed over the years of the Keating government, and its strong media backing.

In fact, the ACM and its allies gained 30.67 per cent of the vote. The ARM obtained 30.34 per cent. Many of those who voted for ARM must have done so believing its claims that it would seriously countenance direct election. But soon after the convention opened, the ARM moved to close off any further discussion of direct election. This was too much for the independent Republicans, who threatened a walkout. The ARM had to retreat and allow further discussion.

WHAT DID THE CONVENTION ACHIEVE?

This was the subject of a law forum in the 1998 issue of the University of New South Wales Law Journal, Vol 4, No. 2  (UNSW). All the following comments come from that journal unless otherwise indicated. Cheryl Saunders, a prominent academic lawyer, said: "While some elected delegates had formerly been politicians, the convention generally broadened the range of people normally involved in the development of proposals for constitutional change."

Moira Rayner, a Republican delegate, said: "It ran efficiently. It did not collapse, as it could have, on the second day. It got a result." Her final conclusion was, "We missed a chance in February." Sir Harry Gibbs disagreed: "No doubt a constitutional con¬vention should include representatives of all schools of political and constitutional thought, but the representation of sectional interests is more likely to divert attention from the constitutional issues than to assist in resolving them." John Uhr, Director of Public Policy at Australian National University, maintained that the process was good even if the outcome wasn't:

The Convention was an important illustration of Australian democracy at work. An assessment of the worth of how the Convention went about its work can tell us much about the strengths and weaknesses of democracy in Australia ... As a process, the Convention proved valuable as an example of what can be achieved through wider community consultation over the agenda of government and closer public participation in government decision making. I remain sceptical about the enduring qualities of the final recommendation.

Yet Attorney-General Darryl Williams took a quite different view, which George Winterton explained is justifiable in terms of the government's purpose: "[Williams] recently declared the February 1998 Constitutional Convention 'an outstanding success'. This is a fair assessment if the convention is judged against its designated purpose — to decide whether Australia should become a republic, when this should occur, and which republican model would be put to referendum. However, at least for repub¬licans, the convention will ultimately have failed unless a satisfac¬tory model of republican government is approved at the referendum."

The convention soon demonstrated the vacuity of the terms republic and republicanism, at least as they are being used now in Australia.
Professor Greg Craven writes that whereas previously, antipodean republicanism had tended to be perceived as a single, more-or-less uniform entity: "Now, however, we realise that there are at least three orders of republicanism."

Craven divides most of the Republican delegates into one of three categories: "democratic Republicans", or as he prefers to call them, "radical Republicans", "conservative Republicans", and "symbolic Republicans", described by Craven as "mainstream Republicans", and whom I have sometimes chosen to call "official republicans". Each group had its own claim to a kind of republicanism, but some felt inclined to argue that theirs was the only legitimate expression of republicanism. As Moira Rayner explained: "The republican cause is a broad church. True believers may, and we did, legitimately differ, yet the Australian Republican Movement ... claimed orthodoxy and that other views were heretical."

Democratic Or Real Republicans

The democratic or real republicans were those delegates at the convention who embraced constitutional reform but saw it as not merely symbolic in nature. Rather, the symbol of a new political order was to gain significance from the other substantive reforms it heralded for the people. Many of these delegates combined to form a loose coalition, the "Direct Election of the President Group". But for many, a directly elected president transplanted into a Westminster system was not really enough. Often, the aim was an executive presidency. These people were attempting to reform the system rather than merely redecorate it. They have united under the name "Real Republicans" to fight for a No vote in the 1999 referendum. They, even more than con¬stitutional monarchists, attracted the ire of the official republicans. For example, former Prime Minister Gough Whitlam called them "irresponsible and ignorant". (Australian Financial Review, 26 May 1999)

The democratic republicans were quickly robbed of any real opportunity to discuss their concerns. As John Uhr explains their predicament:
John Howard justified his Convention as a way of broadening the agenda of constitutional change from the head of state to other issues of great constitutional significance, such as parliamentary terms, Commonwealth—State relations and the allocation of legislative and executive powers. Sadly, the Convention was given a much narrower brief, which pushed to the side any constructive deliberation on related issues of democratisation and constitutional modernisation.

This was a great problem for those who, unlike the official Republicans, were not interested merely in symbols. These included Moira Rayner and the Reverend Tim Costello. Rayner says: "We ... argued that the head of state was an unimportant symbol ... We had always said that the head of state issue was less important than our democratic and constitutional problems."

They were joined by a vocal minority, including Sydney Magistrate Pat O'Shane (who wanted not "just a republic" but "a just republic"), Western Australian Professor Patrick O'Brien and the teams mounted by former Brisbane Labor Lord Mayor Clem Jones in Queensland and former independent MP Ted Mack in New South Wales, to lobby for a directly elected president.

The discussion was not completely limited to minimalist change. John Uhr notes that much of the debate, and indeed the final communique, "strayed beyond these narrow confines" almost as a kind of proof that the popularly elected delegates would not be prevented from raising a wider range of issues for constitutional change.

Those hoping for reform, like Uhr, must remain profoundly disappointed with the convention's outcome. For this, he blames a "sceptical" prime minister who had won a victory that promised to make an Australian republic safe for the prevailing interests that dominate the Australian parliamentary government. "The preferred option leaves most of the crucial decisions in the hands of the ruling prime minister. Thus a conservative prime minister has the prospect of bringing home Labor's minimalist bacon." He seems to have forgotten John Howard is opposed to the model.

Richard McGarvie and the Conservative Republicans

The conservative Republicans (perhaps we should call them "neo-monarchists") remained a force after the Democratic-Republicans had been vanquished. This group comprised the delegates attracted to the model proposed by a former Victorian judge, then Governor Richard McGarvie. McGarvie acknowledged that the queen plays a real role in the constitution, one that a genuinely minimalist Republican must seek to replace with a new institution. They proposed establishing a council of retired statesmen and jurors to appoint the president on the prime minister's advice.

Craven says that the conservative republicans have more or less "reluctantly" embraced the Australian republic as inevitable but are vitally concerned to ensure that the new republic clings as closely as possible to the underpinnings of its monarchical ancestor. (Yet early in the referendum campaign, Craven moved to support the so-called bi-partisan model that is the subject of the referendum – the second Keating–Turnbull republic.)
These are Australians who are willing to contemplate an Australian republic so long as it represents merely "an indigenous adoption" of Australia's highly successful system of constitutional monarchy.

Professor Winterton says that McGarvie is misguided in thinking that his constitutional council is any real substitute for the crown. He overlooks the important consideration that a head of state must enjoy "some legitimacy" for the effective performance of the functions of the offices, including both the symbolic role of national figurehead and focus on national unity and the exercise of reserve powers to protect the constitution if necessary. The governor-general's legitimacy derives from the representation of the crown, which enjoys a legitimacy derived from history, tradition, sentiment and, for some, religion.

But, Winterton asks, what reserve of popular authority could a republican head of state chosen by a prime minister and appointed by a constitutional council draw upon when necessary to dismiss a prime minister or premier commanding the solid support of the lower house of parliament? Australia's political culture is, he says, "too egalitarian" to place much credence in a constitutional council of retired judges or retired heads of state. Moreover, while the "majesty and respect" enjoyed by the monarch may constrain an Australian prime minister in nomi¬nating a candidate for governor-general, it is difficult to envisage the proposed constitutional council fulfilling a similar function, so that the council's alleged equivalent with the monarch is "unsustainable". (Adelaide Review, August 1997)

Unlike the symbolic Republicans, the conservative Republicans are concerned about retaining the monarchical skeleton even if it is encased in a Republican shell. Professor Craven says that the existing system is not, as is sometimes supposed, unadulterated in character. Our democracy is fundamentally qualified. It is both "representative" and "parliamentary" in nature so that the will of the people cannot legitimately be expressed directly and immediately but only through the prism of their constitutionally elected representatives. This essentially conservative British version of democracy was, he says, directly confronted at the convention by the "spectre of a popularly elected president" wielding popular power in defence of the electorate against its parliamentary representatives. So, he says, the real Republicans were at odds with everyone who stood by a more traditional concept of Anglo-Australian constitutional theory. Craven suggests that the real dilemma for conservatives is one about how best to preserve the democracy they presently enjoy rather than one about republicanism versus monarchy.

The conservative Republicans exerted a greater influence over the official ARM Republicans than the democratic Republicans were able to do. This was principally because of a media campaign to tempt the ACM and its allies to vote "strategically". This strategy was to support the McGarvie model as the "least worst" republic so it would emerge as the preferred model at the convention. The strategy then would be to campaign against the model at the referendum as the easiest one to defeat. The ARM would not believe ACM's protestations that they were determined to resist this temptation. So, they saw the need to win over at least some democrat republicans and conservative Republicans by changing their model.

Official Republicans - Australia's Republican Movement (ARM)

This group of Republicans included the dominant voice at the convention, the Australian Republican Movement. The group differs from the conservative Republicans (and to some extent the democratic or real Republicans, too) by "ardently desir[ing] dramatic change in Australia's symbols". They also differ from the democratic republicans (and to some extent find common ground with the conservatives) by claiming not to seek to change the "substantive systems of government". The difficulty is that they either do not know what they are doing or they are not letting on that they want to make significant changes to the Constitution. Both of their models are substantially different from the present constitution.

Yet this is the school of the so-called "minimalists", the heirs to the Keating legacy. It had the numbers to largely control the Republican vote at the convention, provided the monarchists did not vote "strategically". The model endorsed by this group was the one that popped up in the last days with a nomination procedure tacked on as an apparent peace offering for the Democratic-Republicans and an amended dismissal procedure to attract the conservative Republicans and the Labor Party. In other words, just another deal behind the scenes to get the maximum vote.

There are many critics of this group's final model. Professor Winterton, himself a delegate of the symbolic republic persuasion, explains that the convention's failings are largely attributable to two factors: insufficient attention was devoted to the details of the republican model, and the ARM conceded too much to the prime minister and to supporters of the McGarvie model in "a futile attempt" to secure their support.

Besides criticisms of their tactics, some highly informed commentators began to question the fundamental tenets of the minimalists' approach at the convention. Professor Cheryl Saunders has said that, in hindsight, minimalism was a mistake. It has encouraged Australians to think in terms of retaining unnecessary monarchical forms while replacing the monarch.

This approach resulted in a first model where the substance is monarchical and the symbolism republican. This is as intolerable to those who want substantial reform as it is to those who believe the existing machinery works well and should not be jeopardised. Moira Rayner writes that if the referendum succeeds, we will enter the twenty-first century with "twentieth-century amendments cobbled onto a nineteenth-century constitution which is dressed up with a poetic, meaningless preamble". She describes this as "the sweet smell of democratic decay masked with the synthetic scent of eucalyptus".

The official ARM Republicans, despite their numbers, influenced few others. Their so-called symbolic changes were anything but that. They would work to the detriment of the existing system of checks and balances, which is so important to all other delegates! Furthermore, they were unable to provide the kinds of reform desired by the democratic republicans. However, their program did have an initial appeal for those people in society who sense the desirability of change but have not yet considered the details or implications.

THE COMMUNIQUE

The convention's final resolutions were compiled into a commu¬nique given under the hand of the Chairman, Ian Sinclair, and the Deputy Chairman, Barry Jones, to the prime minister pending the compilation and tabling in parliament of a report of the convention. In Principle Support for a Republic, The convention resolved that it supported "in principle, Australia being a republic". This was hailed by Republicans as a decisive victory. But as Sir Harry Gibbs points out, since there are many republican models, some of which may be attractive but others which would be regarded by Australians as entirely unacceptable, it is "futile to say that Australia should become a republic" unless an acceptable model fora republican constitution is at the same time suggested. A resolution drafted in the way this one was reflects sentimental preferences but covers up divisions. It was so lacking in meaning that every delegate could have, in good conscience, supported it.

The convention then resolved that the "Bipartisan Appointment of the President Model" be adopted "in preference to there being no change to the constitution" and that the required changes "be put to the people in a constitutional referendum". It was resolved that this referendum should be held in 1999, and if carried, the new republic should be instituted by 1 January 2001.

The States

The communique adopts a view never before advanced, that the crown is seven crowns and that each can be dismantled piece by piece. So, the convention resolved that the commonwealth parliament and executive should consult their state counterparts to determine whether the adoption of a republican system by the central government would have any implications on the state's constitutional arrangements. It was also resolved that change at the commonwealth level should not pressure the states to make any involuntary changes, and provision should be made to allow for any state that wished to retain their monarchical arrange¬ments for the time being. All the states will not be required to change at the same time as the commonwealth.

As Sir Harry Gibbs explains, problems may arise from the convention's treatment of the states:
It would be absurd and destructive of the symbolic significance which Republicans attach to the change if some states remained monarchies when the Commonwealth became a republic. Further, such a situation would give rise to constitutional questions as yet unresolved, including the question of whether the change could be made without the assent of all states. It is a matter of controversy whether a referendum carried only in a majority of states would suffice for this purpose. In any view, the Commonwealth of Australia Constitution Act (1900) would require amendment, and one view is that this could not be done by way of s128 of the Constitution. From every point of view, if Australia is to become a republic, the Commonwealth and the states should change together.

Julian Leser, the youngest convention delegate, warned that in a situation where a majority of votes is achieved overall and in the requisite four, but not all six, states, the high court may be required by the other two states to adjudicate on the constitutionality of the act. He says that the high court could be placed in "an invidious position". If it decided to make those declarations, it would be forced to ignore the will of the majority of people and the majority of people in four states. Conversely, if it did not make those declarations, it would force the two remaining states into a federal republic that they did not want – it would be ignoring the sovereignty of the people of those states. "The worst scenario for republicans who argue that a republic will bring Australians together is a high court challenge that will tear Australia apart." It should be noted that the high court cannot give an opinion on the constitutionality of proposed legislation in advance. (In re Judiciary and Navigation Acts, 1921, 29, CLR, 257)

The Bipartisan Model

This was the model that prevailed over the others, such as direct election or appointment by the constitutional council on the prime minister's advice. It only had the support of 73 of the 152 delegates. It consists of four components: a nomination process, appoint¬ment by a joint sitting of parliament, dismissal by the prime minister and that the president's powers be those of the governor-general.

The Preamble

Going beyond its terms of reference, the convention resolved that a new preamble should be inserted in the Constitution. The preamble to the Imperial Act is to remain, but any spent covering clauses are to be removed while any remaining operative will be moved into the constitution itself. This will presumably have the effect of limiting the content of the Imperial Act to the preamble, followed by the Constitution, which will commence with a second preamble.

Eleven elements are stipulated for inclusion in the new preamble, ranging from a reference to "Almighty God" to an "affirmation of respect for our unique land and its environment". Three other matters are listed for possible inclusion. The most curious element is that the preamble is to be drafted "in such a way that it does not have implications for the interpretation of the constitution". As if that were not enough, Chapter II of the constitution (dealing with the Judicature) is to contain a new provision: "That the preamble not be used to interpret the other provisions of the constitution." It is not clear that this would be effective, especially in international forums.

On this, Alex Reilly argues that it is illogical to support the expression of core values in a preamble and then to ensure that they are not constitutionally enforceable: "In one breath, the pre-amble pronounces values to aspire to, and in the next it ensures that those values are unenforceable in the interpretation of the constitution."

What was the intention? Mary Delahunty, an ARM delegate, described the preamble just as a "welcoming mat" for the constitution. Craven suggests that some delegates had a more sinister inten¬tion. He says that the "constitutionally literate" among the radical Republicans had no illusions about the process in which they were engaged. They hoped that the inclusion of rights and values in the preamble might provide "a right-minded high court" with a base from which to interpolate those concepts into the body of the Constitution.

Sir Harry Gibbs is critical of the whole project, explaining that a constitution should prescribe the method of government, and an expression of social values is out of place in such an instrument. It is particularly unwise to attempt to give constitutional recognition to contemporary values since the most elementary knowledge of history should show how dramatically values can change in a comparatively short time ... It cannot be predicted with certainty whether those provisions would be used, with unpredictable results, in international tri¬bunals as an indication of the principles which Australia, having recognised, should apply in practice. Despite this, Winterton maintains, "The convention's resolution on the preamble is one of its most significant, and least timid, accomplishments."

Even if not for Winterton's reasons, the preamble resolution is highly significant. It exhibits a desire to make sweeping gestures that have no substantive effect. But there was urgency, and due attention was not paid to the detail – wherein the devil lies. In these senses, it seems to exhibit more transparently the symptoms present in the resolutions regarding the bipartisan model.

In any event, the convention's proposals were not accepted by the prime minister, who established a separate process, which will be the subject of a separate referendum.

Consequential Changes

The convention also passed resolutions on a number of conse¬quential issues: the name "Commonwealth of Australia" be retained; the use of the title president; new oaths; commencement date of new provisions; various provisions regarding the presi¬dency; provisions regarding monarchical symbols; and eligibility for the presidency. It says that Australia will remain a member of the Common¬wealth of Nations in accordance with the rules of the Commonwealth.

Ongoing Constitutional Review Process

The convention resolved that a provision be made for a mandatory convention to be held three to five years after the refer¬endum is carried, with the purpose of reviewing "the operation and effectiveness of any republican system of government introduced by a constitutional referendum" and to address a broad range of issues. Irrespective of the desirability of another intervention (there were many issues that could not be discussed at this one), making provision for reviewing the system is no compensa¬tion for getting it right the first time. If the 1999 referendum is carried, there is no reason to assume a subsequent referendum to correct the mistakes in the first one would be carried. It will be hard enough to get one referendum through, let alone two.

National Symbols

Attention was drawn to the fact that although consideration of the Australian National Flag and Coat of Arms fell beyond the convention's terms of reference, some delegates raised the possibility of enshrining both in the constitution.

Definition of Presidential Powers

The convention effectively avoided this issue by resolving that the powers of the new head of state should be the same as those of the governor-general. To this end, the constitution would spell out the non-reserve powers as far as practicable, and a new provision would be inserted stipulating that "the reserve powers and the conventions relating to their exercise continue to exist". This provides two problems, as we have seen. Firstly, the conventions of the crown could be less effective or disappear. Secondly, the new clause saving the conventions would effectively make them "justiciable" (i.e. reviewable by the court). As Sir Harry Gibbs observes:

If a provision to this effect is written into the Constitution without qualifications, it will fall to the courts to decide what the constitutional conventions require. This would render an exercise of the reserve powers open to legal challenge, whereas at present, those conventions are not open to judicial review. So, a constitutional crisis could drag on for months.

THE PROCESS AFTER THE CONVENTION

The Bipartisan Model was the result of the ABM trying to wrestle with great questions of constitutional law and political theory. It took no more than four days of discussion and negotiation, sup¬ported by many millions of dollars of taxpayers' funds. But it actually failed on the floor of the convention. Nevertheless, it was the preferred model of the Republican delegates. Accordingly, the prime minister decided that it should be put to the people in a referendum, a view supported by a majority of delegates and by all of the major political parties.

But in what form? Professor Winterton suggested that the "Parliament should generally honour the convention's resolutions". This is surely not good enough. In a speech given on 27 March 1998, Sir David Smith warned against federal ministers changing the convention model in the parliament. The people should be allowed to vote on the Republicans' preferred model:

After describing the final republican model as "a hybrid on a hybrid on a compromise" and after referring to elements of it that he believes are unworkable, Peter Costello was reported as vowing he will urge the Federal Parliament to amend the model produced by the Convention. Other reports spoke of Daryl Williams tinkering with the model during his Department's drafting of the referendum Bill. For the Government to allow the Treasurer and the Attorney to produce their own version of what they think the Constitutional Convention should have come up with, or for Parliament to tolerate such action, would be a betrayal of the Convention and a repudiation of the Prime Minister's undertaking. I hope that the community debate that lies ahead of us will be aimed at keeping the bastards honest.


A feature of the convention was a moving address by ACM's Queensland delegate, Senator  Neville Bonner".

Senator Bonner added a funeral. Chant to a draft by Professor David Flint on the theme, 'How dare you?'

 

Crowned Republic

A Crowned Republic is a form of government that features a monarch who serves as a symbolic, ceremonial leader with limited authority over matters related to the executive branch and constitutional issues. This type of system is exemplified by countries like Australia, New Zealand, Canada and the United Kingdom, which are officially classified as constitutional monarchies. Additionally, the term can be applied to historical republics where the head of state held the title of "doge," such as those found in Venice, Genoa, and the Republic of San Marino. In these cases, the monarch's role was largely symbolic, with actual governance being carried out by elected officials or other government bodies. Overall, a crowned republic is a unique blend of monarchical and republican features in which the monarch's role is largely symbolic but still serves an important ceremonial function.
Support Us!
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram