AIH399 MAKING HISTORY
by Kimberley Young
- This article proposes an Australian republican model package for Australia’s contemporary society.
- This article is not an assessment of whether Australia should become a republic; rather it contends that an Australian republic is likely to occur, or at least be the subject of substantial political debate and activism, in the next few decades. Therefore we need to be prepared for change.
- In developing a republican model, we must learn from the lessons of the past, particularly those gained from the 1999 failed republic referendum and the process of Federation.
- Complete public involvement in this process is essential to create an adaptable model that safeguards our democracy and Constitution. A balance between political and public involvement must underpin an efficient republican model.
- The necessary procedures for the nomination, election, and dismissal of an Australian head of state are proposed, as well as the process for the review, drafting, consultation, and implementation of a republican model.
- Constitutional issues and the proposed relationship of an Australian head of state to the states and territories also are discussed, arguing that the key constitutional principles of the separation of powers, representative government, and democracy must be the bedrock any republican model.
Whether you’re a monarchist or republican, the sense of movement towards an Australian republic can be felt in the progressiveness of the twenty-first century. As a monarchist, I am supportive of the constitutional ties to the monarchy that our nation holds. As a nation, however, we need to be realistic about the direction the majority of our citizens are headed. Statistics show that, while support for an Australian republic has fluctuated regularly between the last proposal referendum in 1999 and today, support for a republic is not an insignificant minority. A Newspoll in April 2011 found that 41 percent of those interviewed were totally in favour of a transition into a republic. The Australian Election Study in 2010 found that 54.5 percent of those interviewed were in favour of an Australian head of state. The changing demographic of the Australian population is another factor to contemplate. We face substantial change in the proportions of elderly and young Australians in the next twenty years, which could result in a change in stance activism on the status of an Australian republic. What can be derived from these factors is that a seed for transition from a monarchy to a republic with an Australian head of state is still present, and we need to be prepared for the potential for change. Therefore, the issue facing Australia today regarding the republic debate actually may be not whether we should or should not become a republic, but rather what should the most efficient republic model for a twenty-first century Australia look like?
In the unsuccessful 6 November 1999 republic proposal referendum, only 45 percent voted for the republic package, with no majority support in any state. This was despite the fact that, according to a Newspoll of city and country voters in September 1999, some 95percent of Australians agreed that the head of state should be a fellow Australian. The reason for its failure heralds back to the issue of the majority of voters not feeling they had enough information about the overall package. It is no surprise that people were wary of a referendum proposal that involved a significant transformation of symbolism and governmental operation. There are some crucial preliminary questions that need to be raised when considering what kind of base we should a republican model upon. For instance, will an Australian head of state possess executive powers or merely hold a symbolic office, possessing merely special reserve powers? To what extent will the role of the head of government, the prime minister, remain independent of the role of the head of state? How will the head of state replace the role of the Queen in the Commonwealth Constitution?
It is clear that Australia needs to be prepared for possibly becoming a republic in the coming twenty years or so. We need to develop a republican model that not only answers the above fundamental questions, but also implements the necessary elements required for its success, constitutional issues, the role of the public, a process for the consultation, review, and implementation of a package, a procedure for the nomination and election of an Australian head of state, as well as for their removal, and the involvement of the states. These practices need to be developed whilst implementing the lessons learned from the 1999 failed republic referendum and Australia’s earlier federation.
Past lessons learned: the 1999 republic referendum proposal; and Federation
Australia’s identity has travelled a long and diverse road to arrive at where it stands now. We are no longer solely the children of Britain. Therefore, the debate surrounding an Australian republic pivots around more than solely our constitutional structure, but also how we view ourselves collectively. Whilst our country consists of a myriad of cultures, we can’t ignore the history of Australia’s federation, encompassing where we’ve been and where we’ve come from. When proposing a republic model package, then, we need to respect our national journey, history, and traditions. In composing a model, the institutions involved need to remember for whom they are composing the model: the Australian people. The principles of representative government instilled in our parliamentary system need to be enacted in this process.
§128 of the Commonwealth Constitution is the avenue for the alteration of the Constitution. As many constitutional lawyers discuss, the framers of the Constitution included this provision over one hundred years ago to allow the people of Australia to handle the national issues and changes that would emerge over time. The requirement of a double majority to pass any §128 referendum also should be noted. This precaution of a double majority to pass such alteration prevents changes that are not viewed by the people as being absolutely necessary and indispensable.
Only eight of the 44 referenda attempts to alter the Commonwealth Constitution have succeeded. Of the 24 referenda questions regarding the enlargement of Commonwealth power, only two were passed by the people—both related to welfare and social justice. Of the 16 referenda posed between 1974 and 1999, only three passed (concerning the retirement of judges, casual vacancies in the senate, and votes of a territorial nature). What we can learn from this history is that Australians are very reluctant to increase the power of their government. What we can also discern is that the public does not want to make any alterations to the Constitution or its system of government unless it is vital and occurs through a secure method.
In light of this history, it is conceivable that the 1999 republic referendum proposal may have been successful had it been through a safer model. Kim Beazley, an avid supporter of the republican movement, suggested two main reasons why the 1999 republic referendum failed: a lack of bipartisan support; and a lack of communication with and education of the public concerning the proposed model and its likely influence on the operative effects upon government and the Constitution. Furthermore, according to Greg Craven, Vice-Chancellor of the Australian Catholic University and arguably Australia’s leading scholar on constitutional law, the potential for a volatile relationship between the roles of the head of state and the prime minister, the possibility of a ‘celebrity president’, and the presumably heavy involvement of politicians in the election and dismissal processes of the head of state all contributed to its failure. Institutions drafting referendum proposals also should consider that a variety of model options may be the safest and most efficient way to appeal to a public who do not approve change to their way of government unless it is completely soundproof.
We also should look back even further, to the process of Australia’s Federation, to learn how to best draft a method of change of government operation; indeed, the process of transitioning six colonies into one nation bears many resemblances to the transitioning from a monarchy into a republic. In the movement towards federation, the Premier of New South Wales George Reid called a Premier’s Conference in 1895 to prepare a bill to allow for Federation and the Commonwealth Constitution, which would then be given to the parliaments of the colonies to make recommendations and modifications. The lesson learned here is that progress is achieved thorough inclusive consultation with all parties involved. In addition, when a change is of such magnitude and relates directly to a method of governance, politicians must be involved. While their involvement should be limited, their experience and representative skills should not be discarded.
Necessary elements for a successful republic referendum package
For a republican model to be functional, the foundational elements required to make the model efficient, safe, and successful must be identified before any further action is taken. It is vital that the people are involved in not only the appointment of an Australian head of state, but also in the process of constructing a model. As with any referendum, the support of the people is required, support that should transcend beyond solely the action of voting. A public consultative process should occur to determine a model, or a group of potential models, most supported by the people for whom it is created.
There also must be bi-partisan support of any model. Another lesson learned from the 1999 failed republic attempt is that there was much conflict between the Liberal and Labor parties over, firstly, whether Australia should become a republic, and, secondly, what the proposed model should resemble. Bi-partisan conflict brings with it politicisation. Heavy politicisation of any policy that profoundly concerns the public as a collective — as a republic model would — never will be fully supported by the Australian people in the context of today’s society. There already is substantial distrust of politicians for agenda-seeking instead of carrying out the representative function for which their offices exist. Furthermore, prime ministerial support for a model must exist, too.
Any model must maintain the overall principles and structures of the Constitution. Greg Craven sets out the three ‘S’s’ that must to be adhered to: simplicity; safety; and straightforwardness. Remembering that history tells us that the Australian public does not approve of model proposals that do not feature these three characteristics, these elements must form the basis of any model draft. Furthermore, the procedures and bodies involved in the model must be clearly articulated in the Constitution in a manner that is easily interpreted, so as to protect the model and prevent it from being misconstrued, or the need for any legal challenges based on ambiguities.
A balance must exist between the involvement of politicians and the people. While too much political involvement can derail the construction of the model, too little leadership will leave the process without any direction from those who will ultimately implement it on a constitutional level.
The central feature of a republican model, of course, is the establishment of an Australian head of state in place of the Queen. As an extension of the constitutional principle of the Doctrine of Separation of Powers, whereby the roles and powers of the Executive, Legislature, and Judiciary are in principle kept independent from each other to ensure democracy and responsible government, the dismissal or removal of the head of state must not be conducted by the Executive, particularly not the prime minister.
Involving the public
To give legitimacy and authority to the head of state under a republic, the people must be involved. The role of the head of state always will be representative in nature, regardless of what model and form it takes. Therefore, who are being represented must have a voice in the system of their governmental representation. Effective representation is necessary to maintain democracy. As a principle of representative government, if the people do not place any authority or legitimacy in the head of state, none will exist.
In order to attain any such legitimacy and support from the public, the people must completely understand how the model functions, or the ‘legal mechanics of change’ as the Honourable Chief Justice of the High Court of Australia Robert French once remarked. As seen in 1999, without such an understanding, confidence in the model will be lost.
If the model is being enforced upon the people solely by elitist institutions, public support will not be present. This sense of separation and exclusiveness will only infuse an Australian public with a sense of rejection of any republican model as well as a sense of rebellion against it, regardless of whether there is substantial support for it. We must always remember that a potential transition into a republic is just as much about the Australian identity as it is a system of government and constitutionality.
A model of an Australian republic should be decided upon and assessed through a clear process involving the federal government, the state governments, and the people. Along similar lines to the McGarvie Model, firstly the federal government, the prime minister, premiers, and chief ministers should meet to propose a draft model to then be assessed and amended by both parties of the Commonwealth government and the state and territory governments as a committee comprising representatives of each party within each government. Consultation should occur between the governments and the people via their elected representatives through forums. The representatives of each state and federal electorate should communicate the expressions of their electorates to the whole federal and state-party committee. The federal government should then draft a bill as a representation of the culmination of these ideas to be presented to parliament. A republic proposal package finally should be presented to the public to vote. If the committee arrives at two models with dominant support, both should be presented to the public to vote on.
This process allows for the involvement of both parties of government, both levels of government, and the people, therefore infusing the federalist operation of government into the process. The process, like the model, should reflect constitutional principles and the identity of the Australian system of governance.
Nomination and election process
In 1993, the Republic Advisory Committee advised that the removal of the Queen, or the head of the British monarchy, would be the simplest form of constitutionally transitioning Australia from a monarchy into a republic. An obvious solution would be to substitute the role of the Governor-General with a head of state, without removing or adding to the powers currently belonging to the Governor-General. This model would, for constitutional purposes, be the simplest way to remove the role of the monarchy, whilst preserving the constitutional principles founding the governance of Australia, particularly those of representative government, responsible government and the separation of powers. As it stands, the prime minister possesses the most legitimate power in practice by controlling the most numbers of members in the House of Representatives to bring bills before the parliament with the intention of being passed into enforceable legislation. Despite such influential power, the Governor-General possesses the supreme executive power to appoint the prime minister, other ministers, and judges, as well as to give Royal Assent to legislation. The Governor-General only acts upon advice of the prime minister or other ministers. Another option is to transform the Office of the Prime Minister into the Office of the Head of State. This avenue would require much more constitutional alteration, particularly since the Office of the Prime Minister is a creature of convention, not being mentioned in the Constitution whatsoever. The main issue that must be avoided is the blurring of boundaries, roles, and powers of the prime minister and a head of state, specifically the power to appoint and dismiss each other. These offices must act as a means of safeguarding democracy against the concentration of power.
The next issue with which we are faced is how to elect a head of state, and what should be the processes for nominating candidates, enactment, drafting, and consultation. The nomination of a pool of candidates for election as head of state arguably is the most important step of the appointment process in a republican model. While some models, such as the McGarvie Model and the Convention Model, suggest the election of a head of state from a group of politicians and past governor-generals, state governors, and judges, a compilation of politicians and non-politicians would be the most suitable way to ensure all aspects of the Australian society are represented. While the House of Representatives technically is the avenue for representation of the people, a candidate pool of solely politicians surely would not receive overall support from the public. The House of Representatives could nominate a certain number of candidates, matched by nominations by the Chief Justice and Justices of the High Court of Australia. Categories of candidates also could be implemented, the High Court being required to choose a specific number of candidates from areas such as social justice, culture, education, labour, industry, and business. The reasoning behind separating the areas from which the High Court and the House of Representatives can choose from is based on their respective roles and skills. The House of Representatives is political in nature, the role of its members being to represent the interests of the electorate they were elected by to represent. Thus, choosing candidates based on their ability to represent the interests of the Australian community from within or out of members of the House of Representatives is fitting. The High Court, on the other hand, exercises original and appellate jurisdiction, determining cases based on merits and principles of law and justice with complete independence from the Executive or the Legislature. Thus, selecting candidates from specific categories of practice within the community based on their individual merits is fitting for the roles of the High Court Chief Justice and Justices.
A similar concept to that suggested by Greg Craven, as an alteration of the Convention Model, is that the prime minister could be bestowed the right to nominate a candidate, but only with the support of the Leader of the Opposition, in an effort to maintain bi-partisan support. A risk of allowing the House of Representatives alone to nominate candidates or elect a head of state is that each party could enter into dealings with each other to rig the nominations and elections with their choice before public involvement even begins. The issue then becomes whether a head of state is elected from this pool via a direct or indirect process? An Electoral College could reduce the pool of candidates down to a smaller specified number of candidates, by a two-thirds vote, which then would be presented to the people for election. The Electoral College would consist of former state governors and judges, in order to maintain separation between the acting government and judiciary and the potential head of state. This model would integrate both indirect and direct methods of election in an effort of whole-nation involvement.
Options for the removal of an Australian head of state
In order to uphold democracy and allow for all possible circumstances, provisions must be established for the removal or dismissal of the head of state. The issues to consider here primarily are the roles and relationship between a head of state and prime minister involving dismissal, and the actual dismissal procedure.
The authority of the prime minister to dismiss the head of state must not be allowed. Such a right would provide the prime minister with too much executive power and control. The potential for conflict is considerably heightened if this power exists, particularly if the reason for dismissal is controversial and involves the prime minister. The two Offices need to remain separate in operation. As adapted from the Convention Model by Greg Craven, the prime minister could be given the right to suggest dismissal, to then be assessed by a separate council or tribunal. Creating a separate entity for this procedure would uphold the key constitutional principle of separating key roles and powers.
A further issue in connection with dismissal is the extent of public involvement. If Australia truly is a representative democracy, then shouldn’t the people decide whether a head of state should be dismissed, since the people placed him or her in that office to begin with? One option could be that a council or tribunal first determines if the recommendation of dismissal from the prime minister has legitimate grounds. If grounds are found, then the dismissal could be put to the public to determine through referendum election. Such a council could consist of representatives from both parties of the House of Representative, state premiers, the Chief Justice of the High Court and state governors. This would enable the incorporation of all levels and parties of Australian government to be involved in a decision that would affect the country as a whole.
An issue also arises as to whether the head of state should have any powers relating to the states. In essence, should a head of state be able to exercise the same powers upon the states as it does at the federal level? During Federation, the colonies maintained the process of retaining the governors of their respective colonies as opposed to dealing with the monarchy through the Governor-General on a federal level. Under the current Commonwealth Constitution, the Governor-General has no constitutional role linking it to the states. Instead, the Queen maintains an independent relationship with the states from the Commonwealth pertaining to the Commonwealth Constitution.
Therefore, if a head of state effectively assumes the Office of the Governor-General upon an Australian republic, their powers in connection to the states must be assessed. If the head of state is not provided with any powers relating to the states, an issue arises as to the true representative quality of the head of state of Australia as an entirety. One method of addressing this would be to provide the role with the power to appoint state ministers and premiers, assent to state legislation as well as any other mirror powers it possesses at the federal level, thus instituting a federalist overview of government whilst also representing Australia as a whole.
We monarchists can’t ignore the future and popular opinion. Even if the event of Australia becoming a republic were not to pass in the coming decades, the issue will definitely be raised. Australians can feel safe about the future of the country they live in if we’re prepared for all possible forms of government operation. This is not an issue of whether we as individuals support a republican or monarchist system of government and constitutional operation, but rather being sensible enough to cover all the options.
Selected further reading:
Blackshield, T & Williams, G 2010, Australian Constitutional Law and Theory: Commentary and Materials, 5th edn, The Federation Press, Annandale.
Murray, S 2010, Constitutional perspectives on an Australian republic: essays in honour of Professor George Winterton, The Federation Press, Annandale.
The Republic Advisory Committee 1993, Issues Paper, Australian Government Publishing Service, Canberra.
Beazley, K 2001, ‘How may the people be heard? Planning for a new republic: process and content’, University of Notre Dame Australia law Review, vol. 3, pp. 1-10.
Craven, G 2001, ‘The republic: is the 1999 proposal beyond repair?’, University of Notre Dame Australia law Review, vol. 3, pp. 59-81.
Galligan, B 2001, ‘Rethinking the Australian republic: A radical alternative – can we abolish the Prime Minister’, University of Notre Dame Australia law Review, vol. 3, pp. 45-58.
McGarvie, R 2001, ‘The wisdom and hindsight: the 1999 republican referendum – lessons learned for the future’, University of Notre Dame Australia law Review, vol. 3, pp. 11-25.
Sharman, C 2001, ‘The pink slip: removing the President’, University of Notre Dame Australia law Review, vol. 3, pp. 83-94.
Twomey, A 2001, ‘A federal process: options for presidential selection involving the people, the States and the Commonwealth’, University of Notre Dame Australia law Review, vol. 3, pp. 113-126.
Viner, I 2002, ‘What is required for a real victory for a real republic?’, University of Notre Dame Australia law Review, vol. 4, pp. 161-164.
Winterton, G 2001, ‘A directly elected president: maximising benefits and minimising risks’, University of Notre Dame Australia law Review, vol. 3, pp. 27-44.
© APH Network and contributors 2012. All rights reserved.
Citation: Kimberley Young, An Australian Republic: A Model proposed by a Monarchist. Australian Policy and History. October 2012.