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ACM Home arrow Keating-Turnbull Republic: The Nineties

Keating-Turnbull Republic: The Nineties


At the behest of the Australian Republican Movement, the  Keating-Turnbull Republic was developed, principally at the taxpayers' cost, during the nineties.

In its final version and as the republicans preferred model, it was put to the people in a referendum in 1999. 

The question was settled and approved by a Parliament dominated by republican politicians.

Although enjoying overwhelming political and media support, the referendum was defeated nationally, in each and every state, and in 72% of electorates.

The origins of this republican movement can be traced back to the sixties. It followed Australia's first two republican movements, the aim of which was to establish first a racist republic, and then a communist soviet or people's republic.

 



Recent Republican Movements
 
Article Index
Recent Republican Movements
A republic of the Arts
The cultural cringe
The dismissal of the Whitlam government
The Australian Republican Movement
A celebrities' republic
Paul Keating’s vision
The 1999 referendum
All Pages

In the sixties, some in Australia’s intelligentsia thought the problem with the Australian Crown had something to do with the deference their class seemed obliged to offer to Britain, although the British seemed unaware of the issue. 

Our constitutional system is of course something entirely unrelated to the personal psychological problems of some Australian intellectuals. 

What put republicanism on the map was not the issue of some “cultural cringe “ to Britain, but a naked struggle for power in 1975 between two politicians neither of whom was willing to compromise.

The Prime Minister, EG Whitlam, whose government was extremely unpopular, was not prepared to have his term shortened by the Leader of the Opposition impatient for government, Malcolm Fraser. Fraser was not prepared to wait the eighteen or so months needed for an election to be held in the normal course of events, and used his numbers on the Senate to delay supply until the Prime Minister advised an early election. 

It has been unconstitutional since the reign of King Charles I for a government to rule, or to spend money without supply being granted by Parliament. The Whitlam government investigate ways of continuing without supply, on bank loans for example. But these were refused.

Eventually, the Governor- General would have had to act. On 11 November, 1975 rather than a general election, Mr Whitlam advised a half senate election. The timing of this would depend on the state governors, advised by mainly hostile governments. Moreover, even if the election were favourable to Mr. Whitlam, new senators would not take their place until 1 July 1976.

The Governor-General withdrew Mr Whitlam’s commission, called on Mr. Fraser to form a government provided it would only take a caretaker role and would advise a double dissolution of the Parliament. This he did, the election being held on 13 December, 1975, which resulted in a landslide against Mr. Whitlam>

This essentially political crisis was resolve democratically. Nevertheless it has led to calls to change the Constitution, and remove or codify the powers of the Governor-General, and to end the role of the Australian Crown.

This led to the increased interest in such a change, but it was not until Paul Keating became Prime Minister that an Australian government adopted an agenda for change. However, Paul Keating was defeated in the 1996 election, but not before his rival, John Howard had decided to neutralise the issue in the election by adopting a policy of calling a constitutional convention to consider the matter. 

This convention was held in 1998, and was followed by the referendum in 1999. Notwithstanding considerable political, media and financial support, the referendum was defeated, nationally, in all states and in 72% of electorates.
 



A republic of the Arts



The arts have had a long association with nationalistic Australian republicanism. It goes back to Henry and Louisa Lawson, who embraced the narrow, racist and isolationist vision of a new Australia espoused by the Bulletin. Mark McKenna also includes the painter Adelaide Ironside, and the poet Charles Harpur as "artistic" republicans.

In more recent years we have had Donald Horne, Patrick White, Geoffrey Dutton, Les Murray and Arthur Boyd. McKenna attributes the republicanism of these artists and writers to the strong sense of nationalism they asserted through their work in this seemingly isolated country.

Republicanism became a convenient refuge for artists who wished to signify their separation from the "cultural Mecca" of London. They feared a form of psychological dependence that would shackle their creative endeavour in making Australian art. Concerns about a "cultural cringe" are not new.

P.R.Stephensen insisted as long ago as 1936 on the impossibility of a distinctly Australian culture developing while Australia remained intellectually or politically dependent on the British Empire. In the 1960s this sentiment developed significantly, led largely by writers such as Geoffrey Dutton and Donald Horne who spent time in England in the 1960s.

But by then, the campaign seemed curiously dated. Weren't these artists fighting yesterday's battles? Hadn't they noticed that the dominant cultural influence in Australia was now that of the United States? As Michael McKenna observes, republicanism was being led by intellectuals who had only belatedly decided that they no longer needed to feel inferior to Britain.

Meanwhile most Australians, who identified with Americana, were seeing the revival of Australian film, watching for the first time Australian television dramas, and hearing at least some Australian music.
 



The cultural cringe



 No doubt the average Australian wondered, if they paid any attention at all to the issue, why  these intellectuals were worrying about British influence. 

 So we have the phenomenon of members of the Australian intelligentsia leading from behind. As French politician Alexandre Augustine Ledru Rollin exclaimed, "Ah well! I am their leader; I really had to follow them."

Given the profound impact that writer Donald Horne was to have on the later republicans, it is worthwhile to consider more deeply his early approach. From a contemporary perspective they seem to be only of academic interest. His observations about British domination of Australian culture are obviously no longer accurate reflections of Australian society - the Australian sun has long set on British cultural predominance.

But Horne's conclusions are historical in that he spends a great deal of time discussing the “ problem” of past perceptions of Australia, rather than those which prevail today.

In 2008, the Lowy Institute Poll showed that from a list of countries of interest to Australia ( New Zealand was not included),  Australians are by far most favourably disposed towards Great Britain. Horne wrote that for the extreme empire loyalists of the past, loyalty was primarily a matter of the empire and the monarch. Loyalty was due to Australia precisely because Australia was British.

To the extent that Australians deviated from "Britishishness” they denied their heritage and their destiny. Even to distinguish between the interests of Australia and Britain was disloyal. It is telling that even in 1965 Horne preferred to address a mentality that existed in Australia in the past tense. 

Overlooking the example of Canada, Horne claimed the crisis was that Australia has no identity and its only hope is to pursue republicanism. So some politicians’ republic is necessary because Australia lacks an identity.
  



 The dismissal 




 The dismissal of the Whitlam government in 1975, followed by an election, changed the republican debate. What was a curious academic school, the obsession with a cultural cringe, suddenly had legs. It is worth recalling the immediate causes of the 1975 crisis.

They were Leader of the Opposition Malcolm Fraser's impatience for government and the determination of the Whitlam government that it would try to govern without supply that is without the authorisation of funding by parliament. It was the Governor-General's decision to act before supply ran out that brought the crisis to an end.

The crisis was in no way caused, provoked or exacerbated by The Queen. But logic is not necessarily a guide for political action, and many blamed the monarchy, rather than the politicians who had actually caused the crisis. So the dismissal provided a new source of republican sentiment.

 Until then the Labor Party had been as monarchist as the Liberal and Country Parties. Labor leaders such as John Curtin, Dr H.V. Evatt and Ben Chifley were as royalist in sentiment and in action as R.G. Menzies. After all, it was our great wartime prime minister, John Curtin, who recommended that a Royal Duke be made Governor-General.




A new Labor Platform  




But in July 1981, six years after Whitlam's dismissal, a national conference of the Labor Party voted to support a republic. There were in fact two motions, this one from the floor, and another from the executive, asking for an inquiry on the subject and a report. According to the historian Alan Atkinson, the motion from the executive should have been put first, but Neville Wran, the national president, gave priority to the motion from the floor. It was carried unanimously. Labor was committed to a republic without any form of consultation or discussion within the broader party.

A motion in 1991 for a public education campaign, culminating in a referendum to make Australia an "independent" republic on 1 January 2001 was carried - but "not very vigorously", according to the then ALP president.

What then are we to make of something being official ALP policy? The first platform of the ALP aimed for the total exclusion of "coloured and other undesirable races". For many years Labor was committed to the widespread nationalisation of industry and the banks. Both of these policies have not only been abandoned, but reversed. Will republicanism stay as ALP official policy?

Before he endured the indignity of dismissal, Gough Whitlam was asked whether it was correct that he wished to transform the office of Governor-General into a presidency.

He replied: “No, I do not think that is said. I have used the term that the Governor-General is viceroy and some people seem to think that is an extraordinary concept but constitutionally it is quite obvious. He is the stand-in for the Queen when she is not in residence here. He can do everything that she can do as head of state. The system ... works quite well.


“After all, no government of any political complexion can be better pleased than with a system where the head of state, the ceremonial head, holds the position for a certain number of years on the nomination of the national head of government. The system works very well and our governors-general, certainly the Australian ones, have always been top men.”

So before his dismissal Mr Whitlam clearly thought the Australian system quite agreeable. He is of course entitled to change his views. In 1983 he wrote that he believed not merely in a symbolic change, but in large-scale substantive alterations to the constitution.

The case for a republic, he says, is not primarily directed against the monarchy "but against the faults" in the Australian constitution.

 He believes that the case rests not so much on the need to sever links with the Crown, but on the need to strengthen Australia's own institutions and democratic safeguards.

He says any worthwhile improvement of the constitution will require major changes, and "since the monarchy is integral to, and virtually inseparable from, the constitution as it stands, the only realistic course is to replace it altogether".


The action of Sir John Kerr certainly gave a renewed impetus to the cause of republicanism in Australia. A former governor-general, Sir Zelman Cowan, points out that a republic, of itself, would not necessarily dispose of the problem of the exercise of such discretions.

But the fact that a governor-general, "unelected and the representative of the queen", acted in this way is seen by some - perhaps by a growing number of Australians - as grounds for  remaking the constitution without monarchical institutions and  representation.

He believes the achievement of "full" independence for Australia, the changing pattern of her relationships with the world, and the changing character and composition of Australian society and the Australian people have all affected our view of the special relationship with Britain and its institutions.
Mark McKenna says that the modern push for a republic had its roots in Donald Horne's response to the dismissal. Horne saw a need to remove the monarchy not only to assert our national  identity, but also to democratise the constitution.

McKenna points out that Australians are reluctant to endorse constitutional change. So Horne's republic might sink quickly if it were too closely linked with substantive changes to the constitution. Isolating the republic as a mere question of patriotism, of national identity, from the problem of substantive reform is precisely the approach embodied in the ARM's platform.

It was no doubt hoped this has the added advantage of avoiding what Australians have traditionally done in referenda -look closely at the details of the proposed change. 
  



The Australian Republican Movement


The smouldering passion for revenge ignited by the 1975 dismissal was directed at the Crown, and only relatively briefly at Malcolm Fraser. Yet Fraser had forced the issue and taken the country to the brink. Ironically now a republican, he has escaped the ignominy that was directed at Sir John Kerr. Little blame today is attached to Gough Whitlam who, through his wit, fine sense of humour and patrician elegance, today enjoys a high standing in Australian life.

But his new found republican mission would have been dissipated had it not been not for  the creation of the Australian Republican Movement but rather that change to a politicians’ republic  became part of Prime Minister Paul Keating's agenda, as he put it part of the   "big picture".

The Australian Republican Movement was not born in such    heroic circumstances as were the Declaration of Independence, the Magna Carta or the Declaration of the Rights of Man.

Rather, according to republican writer Thomas Keneally, it came about over lunch with Malcolm Turnbull, in the exclusive Sydney suburb of Woollahra:

 “That lunch at Jill Hickson's and Neville Wran's table had now reached the point where nearly all the fish they bought the day before  at the Sydney Fish Markets had been eaten.

“In a manner all too typical of generous Sunday lunches in Sydney, a number of bottles of Hunter Valley Chardonnay had also been drained.

“Neville Wran leaned over the table and said, ‘The other thing I want to see happen bcf()re I bloody well die is an Australian republic.’
 McKenna says that Keneally's description of a "boozy lunch", while honest, was not particularly astute: wine as the wellspring of the Australian republic.

 The concept of a group of citizens leading the republican debate proved to be effective, but it would also lend itself to allegations of elitism.



 
A celebrities' republic 




The ARM, McKenna says, was not so much a people's movement as a "media offensive by a minority of influential individuals who claimed to have the people's interest at heart".  

The argument that the ARM's approach is elitist has also been expressed by other republicans. In 1995, launching Tony Abbott's book The Minimal Monarchy, poet and long-time republican Les Murray declared:

 "I am probably (seen as) a notorious old republican. Have I turned away from all that suddenly and become a royalist? No....I've become more of a republican lately, out of fear of the ugly, elite republic towards which we are being rushed at the moment ­ the republic of celebrities and hectoring and social scorn."  

An anonymous internal report leaked to the press expressed similar concerns about the ARM's leadership. Later in the same month, The Australian reported that the ARM had come under attack from within its own ranks for being controlled by a "Sydney dinner party set" and being anti-democratic.

A document prepared within one of the movement's state branches also claimed many potential members resent the "brash, egocentric, sometimes overbearing, sometimes bullying personal style" of its chairman, Malcolm Turnbull.

A fundraising function in Melbourne was described as one where the champagne was decent and the canapes okay, but the timing and placement were terribly wrong.


 "It was a night to forget. Mostly because so many republicans cannot bear to remember it without wincing." (Virginia Trioli, The Bulletin, 30 March 1999)

With photographs of the opulent evening splashed across the daily press, she  said the event produced the answer to only one question of any importance: where do osprey feathers actually come from?

Answer, they come from society leader, Susan Renouf.
             



 
A Prime Minister with visions: Paul Keating 



The ALP platform, disgruntled artists and the Australian Republican Movement - even together - were not enough to make republicanism a real political force.

Everything was to change when Paul Keating overthrew Bob Hawke in the Labor caucus.  Keating's prime ministership was based on his “big picture” image as a leader seeking national re-invigoration and new defin­itions of Australian identity.

He was never without an opportunity to speak on these issues: even when announcing the Australian of the Year in 1995, Keating managed to reduce Arthur Boyd's entire artistic oeuvre to an attempt to distil the essence of Australia on canvas!  

As Alan Atkinson says, politicians - especially Keating _ are often confused about what they mean by Australian identity. Sometimes they mean our profile in the world; sometimes what they think about themselves. "If he feels more excited and dis­tinctive as a leader among leaders, it ought to follow (in his view) that we should feel more significant as Australians."

It is the prime minister's task, Atkinson says, to build our profile in the world. It is not Australians' task to colour themselves to match his profile.  For a government that had been almost a decade in power and was about to go to the polls at a time of high unemployment and economic recession, the republic provided Keating with a means of reinvigorating the government and distinguishing his prime ministership from that of his predecessor.  

He used it, too, to paint the Liberals as un-Australian and to distract Labor supporters from his free market policies and also to drive a wedge into the liberal Party. Sufficient numbers of liberal politicians succumbed to this tactic.

 Keating's drive for a republic was encouraged by Paul Kelly, then editor-in-chief of Rupert Murdoch's flagship newspaper, The Australian. From the time of Keating's appointment as prime minister, The Australian maintained a consistently pro-republican line, regularly leading editorials with sympathetic headlines such as "Our republic a historical opportunity".

Keating planned to change the flag and the constitution before the centenary of federation. But he was defeated in 1996 but not before his rival, John Howard had decided to neutralise the issue in the election by adopting a policy of calling a constitutional convention to consider the matter. 



 The trail set by The Australian was to be followed even more vigorously in more recent years by The Sydney Morning Herald. Once Sydney's conservative newspaper, the Herald, relieved of the     patrician stewardship of the Fairfax family, has given itself over to a series of small “l” liberal causes. Newspaper editors around the country have followed. Now, an editor or journalist who is not a republican is a rare bird indeed.   

This sudden rush of republicanism among the political establishment and the elites was remarkable, given that only eight years ago the mere suggestion that republicanism would play a central role in Australian politics would have been thought absurd.

 The convergence of a Labor prime minister wearing a streak of republican nationalism like a badge of honour, the London media's intrusion into private lives of the Royal Family and the birth of the ARM, have assisted the growth of republicanism. But this was still essentially a vague idea of removing the Crown, not for a specific constitutional model.

 For the ARM, Keating and the Australian, there has been a common desire to address what they see as a need for a singularly Australian concept of national identity that would not be shared with Britain, nor presumably with Canada or even New Zealand.The is little evidence that Australians  are  interested in going down this path.

In February 1999 the Bulletin Morgan Poll on the three most important things the "federal government should be doing something about" ranked "the republic vs the monarchy and flag issues" at 4 per cent, up from I per cent. Employment (53 per cent), health (37 per cent) and education (35 per cent) were the leading issues.

And this was after years of massive media promotion of republican issues, as well as the government created and funded Republic Advisory Committee and the Constitutional Convention of 1998.

 Historians and political scientists have discussed narrow republicanism for years. But this discussion has remained limited to the elite, found mainly in academia and the opinion pages of the broadsheet press. While the rhetoric is about a republic as a vehicle for 'inclusion', there are few signs that Australian women  or Australian Aboriginals are about to lead the republican charge.

The republican debate in Australia has narrowed to a point where the agitators now concede that the aims of the official republicanism are actually embraced by the existing constitution. The Republic Advisory Committee even admitted that it may be appropriate to regard Australia as a "crowned republic". There has also been a partial concession made in the nationalist republican debate now that the “cultural cringe" has absolutely no relevance.
  A politicians’ republic is now claimed to be only about how to express the Australian identity. It is no longer whether the Australian identity is distinct from a British one. Everybody knows that it is, and probably always was.

As Mark McKenna writes, the republican debate is therefore no longer about whether we are British or Australian - it is about "how we wish to be Australian". Official ARM republicans would do well to remember the wisdom that prevailed a century ago when our present constitution was adopted.

Sir Henry Parkes said that our constitutional system would "not come to meet with wild ravings of some person who may call out 'Republicanism', without the slightest knowledge of what he is talking about.
 



The 1999 referendum 




The story about the referendum  is set out in more detail in another section of the Crowned Republic site. Suffice to say, although enjoying considerable political, media and financial support, the referendum was defeated in 1999, nationally, in all states and in 72% of electorates. The Australian Republican Movement did not go into liquidation as it promised before the referendum. It has however changed into an umbrella organization trying to include once mortal enemies, conservative republicans and those who wish to have a general election to fill the presidency, a matter considered elsewhere.    

 
   

 

 



Paul Keating -Australians have to get sold on politicians republic, shredding flag Print E-mail
Keating Turnbull Republic: The Nineties
Written by Professor David Flint AM   
Monday, 14 November 2011

Paul Keating says Australians must remove the Crown – their oldest institution - from the constitutional system and shred their Australian flag so that they may be part of Asia.

The former prime minister gives no evidence that the governments and peoples of Asia either expect this or that there would be any advantage in doing so. 

Indeed, it is more likely that changing the constitution, abandoning our allegiance to the throne and shredding the national flag in such a craven and infantile act merely to curry favour with foreign powers might receive the contempt which it would so obviously deserve.

When told by the ABC’s Leigh Sales that a lot of Australians aren't sold on this prescription, he leans forward and aggressive barks this order:

"They have to get sold on it.”

They have to get sold on it.

 In 1996, Mr Keating lost the Australian general election in a landslide.

 

[This is an extract from the 730 program broadcast on the ABC's national television network on 7 November 2011]

 

 
Funding the referendum campaign - and where are they now? Print E-mail
Keating Turnbull Republic: The Nineties
Written by ACM   
Saturday, 12 November 2011

In response to an enquiry concerning the public funding of the referendum campaign, the following explains the situation.

The government established two committees each of 10 people to administer $7.5 million each, essentially for approved advertising.

Image 

This could not be used for ACM or ARM purposes - each had to raise its own money.  The ARM was flush with funds.  The national campaign director, Greg Barns, later revealed that the  celebrities who dominated the ARM for the most parsimonious, and that the greater part of the funding came from Malcolm Turnbull.

The only other Republican campaigner, and that on the No case, was the former Lord Mayor of Brisbane, Clem Jones ran a separate campaign in Queensland.

 ACM set up offices in every state capital, and employed  national and state campaign directors.  The only television advertising came from the Vote Yes and Vote No Committees, as well as the ARM.  ACM could only afford some radio and limited press advertising

The ARM was able to begin television advertising before any government funded advertising.  The revolutionary cause most of the mainline media, including the ABC and SBS, were openly campaigning for the Yes Case.




...government funding..



The government decided that the seats on each committee would be allocated in the fairest way possible. This was in accordance with the votes received by each group at the Constitutional Convention election.

Accordingly, all seats on the Vote Yes committee, chaired by Malcolm Turnbull, were awarded to the ARM or allies. 

Two seats on the Vote No committee, chaired by Kerry Jones, were awarded to the independent republicans opposed to the Keating Turnbull model, Ted Mack and Clem Jones. Eight seats were reserved for constitutional monarchists.

 ACM won 72.82% of the constitutional monarchist vote in the election. The remainder of the constitutional monarchist vote in the Convention election had been divided between four other groups. They were Bruce Ruxton’s Safeguard The People, the Australian Monarchist League, Queenslanders for Constitutional Monarchy and the Fred Nile’s Christian Democrats, a broader political party. All groups had worked closely together during the Convention with LLoyd Waddy being accepted as the leader. 

Based on a quota, ACM delegates were appointed to the eight seats on the Vote No committee.

It is fair to say that the Vote No Committee Kerry Jones proved more effective than the Vote Yes Committee.  They were able to allocate more funds for advertising time, and they were able to obtain better timeslots.  The vote yes committee used a more expensive agency and seemed less able to secure the best slots.  They were quick to complain about our advertising to the authorities.



... monarchist groups today...


 

Read more...
 
Paul Keating - If I had not lost the election, we'd be the republic geological changes require Print E-mail
Keating Turnbull Republic: The Nineties
Written by Professor David Flint AM   
Wednesday, 09 November 2011

Former Prime Minister Paul Keating, speaking here to the Sydney Writers Festival on 30 October 2011, declares that the major "geologic" events in Asia are the reason why Australia must become the republic we would now be had he not lost the lost the 1996 election.

During the course of the interview in front of an audience apparently mainly made up of supporters, he delivers a very personal attack on the Royal Family.

He suggests, with a gesture, that the House of Windsor is incapable of the renewal that former ALP leader and Governor-General Bill Hayden had recently described.



...embarassing flag....


 

He believes our trading partners are concerned that we are still attached to a "worn out old monarchy". Apparently trade is no longer about quality, delivery and price.

He confirms that he told The Queen on behalf of the Australian people that the Crown is "an anachronism".

He also attacks the flag as "embarrassing".

He tells Kerry O'Brien that had he been prime minister in 1999 he would have won the referendum which he says went down but "not badly". In fact, the referendum was lost nationally, in all states and 72% of electorates.

Read more...
 
First Referendum Model Print E-mail
Keating Turnbull Republic: The Nineties
Written by Professor David Flint AM   
Saturday, 01 October 2011

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


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APPOINTING THE PRESIDENT

The first Keating–Turnbull model has met with both practical and ideological criticism. Despite strong electoral support for popular election, 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 being 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 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, 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 dose 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 on government and opposition assumes that both will act in the best interests of the nation to choose the best candidate. What will obviously happen will be 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 on election and re-election. So they decided to remove the politicians from the electoral process for the president.

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 not 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 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 warns 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 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 ... following 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 on to our monarchical constitution. As Professor Lane observed, rather than attempting to graft a republic on to 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 republic if a sufficient majority vote 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 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 pre¬ferred 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 that:

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 that: "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 impos-sible." (Australian Financial Review, 9 May, 1995) In other words, the problem about 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 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 for their life on the crown. 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 now have the flexible arrangements presently enjoyed. 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, when overseas, seen as a repre¬sentative of Australia, 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, rep¬resentative 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 in future they would appoint their respective heads of state. 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, or 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. A devastating result, unless you tried 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.

 

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Second Keating Turnbull Republic Print E-mail
Keating Turnbull Republic: The Nineties
Written by Professor David Flint AM   
Saturday, 01 October 2011
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 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.

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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 ARM argues that it is as good, and that the change is only symbolic. But if the 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 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 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 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 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 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 the 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 fol¬lowing 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 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, 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 ques-tions 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 which 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, to 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 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 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 suit¬able 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 fora 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 a 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, or 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 will 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 govern¬ment 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 ARM argues that popular election will inevitably produce a politician. Their presi-dent 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 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 reflect current constitutional practice, their express inclusion creates a sit-uation 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 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 on his own discretion as the constitutional umpire. Under the third paragraph of the new section 59 we have a 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 the 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 justiciable. 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 were found to be justiciable. 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 a 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 a reserve power if the exercise is not justiciable 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 a reserve power. After all, the exercise of the prime minister's power to dismiss the president is not reviewable. Why should the president's? 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 the 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 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 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 the 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 re-instated. 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 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 forma 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 pres¬ident 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 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 president could be an adequate substitute for the crown confirms an inability or unwillingness to accept the subtleties of the present constitu-tional 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 inter¬ests 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, 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 presi¬dents 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-sering 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 prime minister's unprecedented power to dismiss the president.
  • The extension of this power even further, in ways not envis¬aged in the convention model, by giving the prime minister a further unprecedented power to engage in the "serial dis¬missal" of those acting presidents he does not want.
  • The fact that the constitutional provisions about acting presi¬dents and deputy presidents may be changed without any reference to the people by an ordinary act of parliament. Again, none of this was provided for in the convention model.
  • The prime minister is to be the sole judge of the president's incapacity. He doesn't even need a medical certificate.
  • The president can be required by the prime minister to appoint any number of deputy presidents with such powers as the prime minister advises.
  • The power of the prime minister to delay a new appointment indefinitely, thus keeping a crony president or acting president in office, or even having none.

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 con-sultation. 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 oppor¬tunity 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 con¬sider 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 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 a 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 an 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 1 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 conven-tion. 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 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 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 on our membership of 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 his 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 the 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 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.

 
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