The Crown and the Republic

Reasonable people may differ on the issue of whether Australia should remain as a constitutional monarchy or whether Australia should become a republic.

However, Australia is a constitutional monarchy at present and any move by the Australian people to change to a republic would require the drafting of significant constitutional amendments and the approval by the Australian people, in accordance with s.128 of the Constitution, of these republican amendments.

The text of the Australian Constitution can be found here and I would urge all Australians to read it and understand their fundamental law.

My view is that if one wants to break with the Crown and institute a republic - with all that will entail - then one has to accept that significant amendments will have to be made to our Constitution. Moreover, these significant amendments will have, also, to deal with the separate relations of the Crown to the several States, as set out below. As WA Wynes noted, "The central characteristic of the Australian Constitution is the predominance of the Crown in every aspect of governmental powers." There is no 'minimalist republic'. In fact, it would be much safer for republicans to propose a wholly new constitution than seek to amend our monarchical and federal Constitution.

Amending the Constitution to create a Republic

To amend the Australian Constitution to create a republic would, at the very least, require the altering of these key provisions:

(A) the Preamble to the Constitution: the Commonwealth of Australia is, literally, constituted via these words and the Constitution that follows:

“Whereas the people of New South Wales, Victoria, South Australia, Queensland, and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established”

On any view, this preamble would have to change and a new sovereign authority found to replace the Crown. Note that the Australians are federating pursuant to the "Two Unders": under the British Crown and under the Constitution. The Crown's position in our Constitution is a matter, simply, of enormity. Also, I am unaware of whether Australia’s republicans wish to remove the references to God in the preamble. The other covering clauses would have to be changed as well;

(B) Chapter II of the Constitution concerning the Executive Power of the Commonwealth, will have to be significantly amended, or, more likely, replaced in its entirety. Section 61 vests, specifically, the Executive Power of the Commonwealth in the Monarch, to be exercised by the Governor-General as the Queen's representative. The constitutional vesting of the Commonwealth’s executive power in the Crown means that, along with that power, we derive from the Crown’s existence, also, our day-to-day Westminster governing norms of responsible government and, in a crisis, the reserve powers of the Crown. In any parliamentary crisis, such as in 1932 or 1975, it is the Governor-General’s duty to ensure that the Constitution is maintained and the laws enforced, and, especially, to ensure that the Australian people decide through elections how a situation of government illegality or deadlock is to be resolved (hence the Governor-General’s power per s.5 to dissolve the House for fresh elections-see discussion below). If the Crown is abolished, so, too, are all these understandings of the executive power that are answered, currently, by the Crown’s position in our Constitution. Inevitably any republic will create a vacuum in the exercise of the executive power–and it cannot be filled by a jurisprudence of ‘cut and paste/replace’ republicanism. A Governor-General acting under royal convention cannot become a President who will be restrained by none of those conventions.

Any president - regardless of whether she or he is elected by two-thirds of the Parliament or directly by the people - will have an electoral mandate that no Governor-General, as the representative of the Monarch, can ever have, or seek to assert now. It will be only human for an elected president of the republic with this sort of national mandate to, sooner or later, seek to exercise the powers that will be reposed in that office, unhindered by royal conventions. There is no minimalist replacement of the Governor-General with any sort of elected President that is, at all, constitutionally safe. There is no safe replacememnt, either, of the Governor-General, by a president appointed by the Prime Minister of the day, who has no security of tenure. Chapter II was drafted on the basis that the Governor-General was the Monarch’s representative and, on those royal and constitutional terms, would exercise the executive power. Chapter II cannot, now, be warped into a republican provision. Instead, any republic would require wholly new provisions setting out what the republican president may or may not do in explicit terms, especially if that president is to ‘cohabit’ with an elected Prime Minister who is already enjoying the confidence of the House of Representatives, where governments are made and broken. The potential for frequent conflict between these two executive office holders - who both have their own national mandates - is obvious, as is the scale of the chaos that could well ensue if they are deadlocked. Again, there is no minimalist solution to the problem of the executive power;

(C) Section 5 will need to be amended, as it allows the Governor-General to prorogue the Parliament and, where necessary, to dissolve the House of Representatives. The exercise of this power now is, almost always, only done on the advice of the Prime Minister of the day, to cause a federal election. However, in times of crisis or deadlock, s.5’s power may be exercised by the Governor-General to force new elections and ensure the Australian people are the ones to resolve a parliamentary crisis at the ballot box. It is hard to see how any future republican president, possessed of a national mandate, where faced with an opposing Prime Minister, especially if that Prime Minister was unpopular, could avoid the temptation to dissolve the House and seek new elections that could remove the difficult Prime Minister. Absent the Crown and precedent regulating this power’s exercise, one can foresee s.5 enabling the slow accretion of power to the presidential office by the frequent calling of elections for the House to remove opposing and difficult prime ministers;

(D) Section 68, as the issue of who is to be commander-in-chief of the armed forces and on what terms, will also be a critical matter. Again, the centuries-old British understandings of a Monarch in command of the armed forces, exercised by the Crown only on advice of the elected government of the day, will be replaced by a President who, one presumes, will have powers of military command, while having, also, this national mandate of either parliamentary or popular vote. What are the armed forces to do when a President and the Prime Minister both have an electoral mandate and yet disagree on matters of war, peace or, in times of domestic crisis, disagree on what is to be done to suppress terrorism, riot, disorder, or an insurgency? One should note here that s.119 obliges the Commonwealth to “...protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” and the obvious problems of who decides what that protection may involve. The armed forces cannot be left to guess and, in the long history of republican collapses, they have not infrequently been brought to an end by a coup as by civil war or economic slump. While such military stirrings against the civil power are anathema to our history and traditions, so, too, is the idea of a republic itself. If you will the republic, you will the risks of disorder that any republic entails;

(E) Section 126, which permits the Monarch to authorise the Governor-General to appoint any person, or any persons jointly or severally, to be deputy or deputies exercising powers, will have to be amended, as presumably any republican president will have a vice-president? If not, what is to happen when the republican president is disabled or impeached? Who is to succeed to the office?

Additionally – and this is a matter worthy of a long treatise in itself – each of the Australian States has their own royal Governor, each with their own state constitutional foundation and relationship to the Monarch. Any federal move to a republic is not necessarily binding on the individual States and their peoples who, also, with a Governor and parliament, have their own polities under the Crown. I recommend, strongly, the magisterial “The Chameleon Crown: The Queen and Her Australian Governors” by Anne Twomey on this matter. The potential position of royal States attempting to exist within a national republic is the stuff of constitutional minefields. (One should note that Western Australia has, already, a history of secessionism under the Crown….)

These are just some of the major provisions that will require amendments. Others, such as sections 16, 34. and 44, dealing with the constitutional qualifications of Senators and House members will have to be amended, entirely, as the concept of a “subject of the Queen” will be rendered nugatory by the republic. Moreover, there can be little doubt, following on from the recent parliamentary citizenship debacles, that proposals will be made that persons with dual citizenship should be eligible for election to the House and Senate and, presumably, to then hold ministerial office. One awaits the referendum that asks Australians to agree to risk having dual citizens hold the offices of Prime Minister, Treasurer, Attorney-General, Home Affairs, Defence, National Security, and Foreign Affairs.

In short, creating an Australian republic is an enormous constitutional undertaking. Do not let anyone tell you otherwise. Please read and know your Constitution.

The Referendum

Assuming, though, that all of these (and, no doubt, other) necessary republican alterations can, somehow, be agreed upon by constitutional conventions and by the parliament, then the republic would still need to be approved by the Australian people in a way that satisfies s128’s “double majority” requirement: the republic would need to be supported both by (A) a national majority of all electors and (B) a majority of the electors in a majority of the States. Over the past 117 years of the Australian Commonwealth, the Australian people have passed only 8 of the 44 referenda proposed, with the most recent 1999 referendum on an Australian republic being defeated in all States and succeeding only in the Australian Capital Territory. This history is not encouraging for major changes of the kind that will have to be proposed by the domestic republican movement.

My Own Thoughts

Good people may differ on the merits of republics and whether one is appropriate for Australia. The American republic offers a model of a classical republic, with separations of all powers and of all bodies, with the executive and the legislature as strangers, often hostile ones. The American model has its strengths and weaknesses, even after a bloody civil war, and so do, also, the various French, Irish, German, and Swiss models. At time of writing, I have no idea what is proposed for Australia’s republic other than assurances that it is not a major change. I trust the above has dissuaded any honest Australian from holding such an ignorant view.

If one has been convinced by the cosmetic and symbolic appeal of a republic and the need to break with the Crown, then one has a duty to one’s fellow Australians to not allow the current constitutional monarchy to be replaced by some antipodean republican chaos that is devised by the fashionable dregs of celebrity, media, and academe.

(I note here for completeness that while the throne is occupied, at present, by the descendants of the usurping German Protestant Hanoverians, not the legitimate British Catholic Stuarts, that is not the issue here).

So, please look at our Constitution with sobriety and with a justifiable scepticism as to whether any proposed republic will function under the stresses of war, peace, depression, etc, and whether the inevitably competing centres of power created by a republic can be restrained by law.

The rule of law, once lost, is extraordinarily hard to re-establish. The grisly fate of the Weimar republic should always be upper most in anyone’s mind, and, also, so should the British constitutional monarchies infinitely better weathering of the stresses of two world wars and depressions, and without any shift away from parliamentary democracy to authoritarianism. For over a century, tens of millions of people have left their homelands to immigrate to Australia, with the security and stability of our Constitution and commitment to the rule of law an unspoken but foundational attraction. And, need I point out, our Constitution cannot enforce itself. In our system, it is the Crown that is the ultimate guarantor of our constitutional order, and the enforcement of both the Constitution and the laws made under it. Most importantly, the Crown also supplies the royal umpire to resolve periodic parliamentary crises or constitutional deadlocks – if necessary by dissolving the House to ensure fresh elections.

It is said of the Australian Constitution that it was drafted by geniuses so that Australia could be governed by fools, such that it also made it very hard for our Constitution to be amended. For my part, I am thankful for the Australian founding fathers’ efforts to make our Constitution as difficult to change as it is made by s.128’s deliberately onerous processes, which showed an early but correct distrust of the schemes and machinations of the political classes who they clearly suspected would come to inhabit a remote capital. The saying, “If there is no need for change, there is a need not to change”, is a sound one for constitutional questions. So is, “if you do not know, vote NO.”

For over 117 years, the Australian Constitution has survived wars, depressions, cold wars, hung parliaments, numerous innumerate and ethically dubious governments, a coterie of crooked MPs and Senators, and a host of other afflictions imposed by the political class on the rest of us. It is said against the Crown that it is undemocratic, remote, and anachronistic. However, in my view, these qualities are but only a few of the Australian Crown's key strengths. The monarch cannot be ejected by the ambitious politicians of the day, most of whom resent that they may aspire only to be ministers of the Crown and not holders of supreme power. The monarchy is a guardian of the Constitution and not some proto-Caesar eager to dictate to the polity. And, yes, the monarchy is as irrelevant to our age as the monarchy is to every age, but its irrelevancy is what makes it also timeless, as is its usefulness, practicality, and value as an enduring institution that is beyond the petty politics of the day. The reposing by our Constitution of the Executive Power in the Crown provides Australia with stability and order in the day-to-day operation of government, as well as a source of military traditions and non-partisan allegiance. The armed forces, police, prosecutors, and other coercive and powerful arms of the state serve the Crown, not the politicians of the day. There is much to be said for such a distinction between the Crown that is served and to which allegiance is owed, and the day-to-day responsiveness of such public servants to the elected government, which changes with elections. One junks such traditions and practices of legality, stability, and good order, only at one’s national peril. Any proposed republic must not compromise the legitimacy and security provided by the Crown to our Constitution. It would be nothing short of insane for Australians to trust in and accept the assurances of our political class (and their acolytes in the media and elsewhere) that they will, by some hypothetical and unexplained republic, improve on an old and enduring constitutional monarchy that has already worked so well, so consistently, under so much historic stress.

So, it is over to the republicans to make their case and to propose their large and necessary constitutional amendments. In explicit detail. And well in advance of any referendum. With time for the needed debates and back and forth that any sensible polity must engage in before changing their organic law.

As for the rest of my fellow Australians, please remember that these debates will occur in respect of our Constitution and, as the ancient maxim found on war memorials across Australia and across the world goes, “the price of liberty is eternal vigilance.” Please do not just be vigilant: be demanding, be questioning, be sceptical, be exacting, and demand answers, of those promoting constitutional change. We Australians and our Constitution are too important and too special to be corrupted, meddled with, or compromised, and in a manner that may have permanently dire consequences for all that we have achieved, thus far, as a nation. The Constitution is our fundamental law and, if it unravels, so, too, will the Australian nation that it, literally, constitutes. CAVEAT

POSTSCRIPT (Thursday 10 May 2018)

Noting that I had, briefly, covered, the s44 issue, above, I make this postscript as the High Court of Australia, yesterday, made its orders and published its reasons for judgment in the Gallagher case. The High Court had previously published reasons in the prior Canavan and Nash cases, which also concerned s44 of the Constitution. I would make these observations relevant to the Crown and Republic issues:

1/ There have been predictable calls for s44 to be amended to allow for dual citizens to be qualified to stand for the Parliament. Any constitutional alteration to amend s44 would have to pass the double majority required by s128. This attempt would most certainly fail nationally and, one suspects, in every State, as well.

2/ The High Court, helpfully, set out in its various reasons that the Constitution prescribes a system of "representative and responsible government", in which citizens elect representatives in the House and Senate, to which the Executive is responsible. In Australia's "Washminster" system, an MP or Senator, once elected, participates not just as a parliamentarian but, also, may participate in the executive government as a minister or parliamentary secretary. To the degree that Australians elect their local MP and their State's Senators, they are, also, electing the current or future members of the executive branch. Insofar as MPs and Senators could, ever, hold dual citizenship, then, inevitably, Australia would risk having a Prime Minister, Treasurer, Attorney-General, Defence, Home Affairs, and Foreign Ministers who also hold Russian, Chinese or Iranian citizenships.

3/ When the Australian Constitution was being debated and drafted in the 1890s, there had been, for decades, significant immigration from around the world to the various Australian colonies that would unite from New Year's Day 1901 as the Commmonwealth of Australia. Pretty much every one of the founding fathers of the Australian federation and the Constitution's framers was familiar with mass immigration, either as an immigrant or as a child of an immigrant(s). At the same time, one of the key drivers of the Australian federation movement was national security. As the High Court held in Joseph v Colonial Treasurer (1918) 25 CLR 32 at 46, "It is a matter of common knowledge that the necessity of a single authority for the defence of Australia was one of the urgent, perhaps the most urgent, of all the needs for the establishment of the Commonwealth." It is difficult to see how any case can be made, in 2018, that considerations of the effects of immigration and competing loyalties of newcomers would have been absent from considerations in the 1890s as to what qualifications may be required of a member of the House and Senate. At the same time, as one can note from (2) above, in our Washminster system, any MP or Senator may become a member of the executive. In certain portfolios, there will be reposed a very high degree of trust in, and loyalty demanded from, the executive office holder. It is very hard to see how it serves Australia's welfare to have a Prime Minister, Treasurer, Attorney-General, or Defence, Home Affairs, or Foreign Minister, with a foreign citizenship, allegiance or other obligation of loyalty.

4/ The most practicable solution to the current crisis is for all aspiring members of the House and Senate to ensure, before they nominate for the Parliament, that their citizenship affairs are in good order and that they comply with s44's requirements. It is the height of absurdity for any aspiring politician to think they should enter Parliament and make laws for the Australian people to live under, when that aspiring politician has, clearly, never read Australia's fundamental law, the Constitution. Australia has an insular political class that believes that when their members are in conflict with the Constitution's clear requirements, that it is the Constitution that should change, not our political class that should ensure their own compliance.

Finally, as a true postscript, I would add that Australia's Constitution provides in Chapter I for a House composed of members representing the interests of their local electoral divisions and a Senate composed of senators representing the interests of their States. The Constitution does not and was never intended to provide for a permanent political class, to provide career tracks (or endless loops) for politicians, staffers, advisors, lobbyists, and a host of other dubious inhabitants of the 2600 postcode. Australian politics - and the quality of our law making and governance - is afflicted, as never before, by party machines, hacks, 'introducers', and a raft of political vagabonds, for whom Parliament is merely a means to further sinecures, not an opportunity to serve Australia and her interests.

It was said of the Roman consul Cincinnatus (519BC–430 BC) that, when Rome was threatened, he left his small farm, laying down his plough so as to wield his sword in Rome's cause, and that, once Rome had been saved and the danger passed, Cincinnatus gave up power, willingly, to return his sword to its scabbard and plow, once again, his fields. The story of Cincinnatus was well known to the early American republic. The example of General George Washington surrendering the American presidency after two terms to return to Mount Vernon is, perhaps, the best example of Cincinnatus since the ancients. Nonetheless, this ancient model of political life and public service - as a vocation for serious people not a career for swamp dwellers - must return in our own times if we are to have any hope of improving the standards of our Parliament and our governance. As Montesquieu wrote in his Spirit of the Laws (1748), "The deterioration of a government begins almost always by the decay of its principles."

Australians need to rediscover not just our Constitution, and the principles on which it is founded, but, also, defend them against those whose negligence and stupidity threaten them and risk their ruin.