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The Australian Republic Unplugged

The Australian Republic Unplugged

An exhaustive unravelling of former Prime Minister Paul Keating's proposal for an Australian republic. (Last updated on 7 October 2006)

This is a continuing update of the booklet titled "The Australian Republic Unplugged"
by Nick Hobson (ISBN 0 949203 50 5) first published in 1995
and printed by Standard Publishing House Pty Ltd. 69 Nelson Street, Rozelle NSW 2039.
© Copyright Nick Hobson, 1995 (Revised 1997,1998,1999 and 2006)

Index
  1. Introduction
  2. Background
  3. Power sharing within the Commonwealth of Australia
  4. Who should dictate change - the People or the Parliament?
  5. We have an Australian Crown - not a British, Canadian or some other Crown
  6. Australia is not an independent country?
  7. Our Head of State should be an Australian?
  8. The Queen doesn't live in Australia!
  9. Australia and the World
  10. The New Zealand Connection
  11. The Role of the Crown has changed?
  12. Election of the President
  13. The President's Powers
  14. Qualifications of the President
  15. Changing the Australian Constitution
  16. The States
  17. What has to be changed?
  18. Change for change's sake?

Introduction

1. On 7 June 1995, the then Prime Minister of Australia, The Hon P.J. Keating MP, delivered a speech to the House of Representatives titled An Australian Republic - The Way Forward. A Questions and Answers paper on this subject was also prepared by the Prime Minister's Department but was not delivered as part of the Prime Minister's speech.

The central thrust of the then Prime Minister's speech was that it was that Government's view that Australia's Head of State be an Australian - that Australia should become a republic by the year 2001.

This article will draw on both of the above mentioned papers, as well as the Australian Constitution and other constitutional documents, for the purpose of this discussion. The reason for addressing the arguments in this paper alone is that this is the only formal proposal for an Australian republic that has been put forward in the Parliament of the Commonwealth of Australia as of January 1997.

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Background

2. The preamble to the Act to constitute the Commonwealth of Australia is simply a combination of two statements. A summary of those statements is:

  1. The people of New South Wales, Victoria, South Australia, Queensland and Tasmania agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and

  2. The same people agreed to unite under the Constitution as established in the Act to constitute the Commonwealth of Australia.

The proclamation declaring the establishment of the Commonwealth includes Western Australian as part of the Federal Commonwealth. Provision was also made for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen.

Section 1 of the Constitution tells us that the legislative power of the Commonwealth is vested in a Federal Parliament, which shall consist of the Queen, a Senate and a House of Representatives while Section 61 vests the executive power of the Commonwealth in the Queen which is exercisable by the Governor-General as the Queen's representative. Additionally, a Federal Executive Council advises the Governor-General in the government of the Commonwealth (S62). Other parts of the Constitution deal with the establishment of both Houses of Parliament and their respective powers, the Judicature, Finance and Trade, the rôle of the States and other miscellaneous matters including, one of the most important aspects of the Constitution, the alteration of the Constitution itself.

It is probably fair to say that the aforementioned briefly describes the form of government which currently operates in Australia. It is a Constitutional Monarchy in which the powers are shared. It is a compact between the Crown (The Queen of Australia represented by the Governor-General), the Senate (The people of Australia represented by State) and the House of Representatives (The people of Australia represented nationally by electorate). The sharing of the powers is central in this trifecta-style arrangement.

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Power Sharing within The Commonwealth of Australia

3. Sharing of power comes about as a result of the limitation of powers vested in the Parliament of the Commonwealth as outlined in Part V of the Constitution and of those several powers and functions which are the responsibility of the Crown exercisable by the Governor-General at the Queen's pleasure. The Governor-General's powers are further divided thus:

  1. those powers detailed in the Constitution where the Governor-General in Council is required to act with the advice of the Federal Executive Council (S63),

  2. those powers detailed in the Constitution, but not subject to Section 63, where the Governor-General, by unwritten convention, acts on ministerial advice, and

  3. the reserve powers which are not detailed in the Constitution and which may be exercised by the Governor-General without or contrary to ministerial advice. It is generally agreed that the reserve powers allow the Governor-General to:

    1. appoint the Prime Minister,

    2. dismiss the Prime Minister, and

    3. refuse a Prime Minister's request to dissolve the House of Representatives or both Houses of Parliament.

Powers not mentioned elsewhere in the Constitution are considered the bailiwick of the States. These State powers are, in the main, similarly divided between the Parliament of a State, the Executive of that State and that State's Governor as the Queen's Representative.

Accordingly, the form of Government that exists in Australia today has three central pillars which share the power (or if you like, the responsibility) to effect good, fair, honest and democratic government in this country. The powers are delicately balanced between a range of agencies. To remove or rearrange any one of these pillars or agencies should not be considered a small step; nor should it be considered not radical as outlined in the Paul Keating's speech. Moreover, it would be a significant change to our form of government which, despite its intrinsic but correctable shortcomings, has served this nation extra ordinarily well for almost one hundred years.

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Who Should Dictate Change: The People or the Parliament?

4. In his speech the Paul Keating stated that Governments can wait for opinion to force their hand, or they can lead. That may be so for general day-to-day matters. However, when it comes to the formation of Parliaments and, therefore Governments and the power that they hold in trust, the central platform of a democratic nation is that power undeniably emanates from the people and not the politicians. That is, power bubbles up from the people; it does not cascade down from those who are entrusted, for the time being, with the powers of the Parliament.

Accordingly, if there is to be any successful and sustainable change to the form of Government it should be grass roots inspired, oriented and agitated for, as was the case for independence in the United States of America; with the exception that agitation must be undertaken peacefully. Anything else may only be seen as some form of Latin American legacy.

The move for a republican Australia is at best, an innocently contrived one by an elitist few who remain distantly remote from the true Australia and at worst, a repugnant push by party politicians of differing backgrounds to deceivingly re-adjust the balance of power of The Parliament to the sole benefit of the politicians.

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We have an Australian Crown not a Canadian or some other Crown!

5. In his speech, Paul Keating constantly referred to the British monarch. The Queen is, undeniably, the sovereign of the United Kingdom of Great Britain and Northern Ireland; she is also the sovereign of Canada, New Zealand, Papua New Guinea and several other countries as well. In other words the Crown is titular to several realms each of which governs its own affairs independently of one another in accordance with the Statute of Westminster, 1931.

The then Prime Minister also stated that, under the Constitution, Australia's Head of State is The Queen and her "heirs and successors in the sovereignty of the United Kingdom". That is not what the Act to constitute the Commonwealth of Australia says; Section 2 of that Act clearly states that "The provisions of this Act referring to the Queen shall extend to Her Majesty's heirs and successors in the sovereignty of the United Kingdom". Additionally, the preamble, in part, to the Statute of Westminster 1931, states "inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions as of the Parliament of the United Kingdom". Accordingly, any inference by the Prime Minister that the succession to the Throne is entirely a British one is false. It is clear that any change to the succession to the Throne would be in accordance with the wishes of the Australian Parliament as well as that of the Parliaments of the other Dominions. It is worth noting that Prime Ministers Joseph Lyons (Australia), Mackenzie King (Canada), Michael Savage (New Zealand) and James Hertzog (South Africa) were all extremely influential in the abdication crisis surrounding King Edward VIII in 1936.

Her Majesty is also, by Australian law, the Queen of Australia. If Australia were to become a republic, the people of Australia would be removing the Queen of Australia from the position of Head of State not the British Queen as asserted by the Paul Keating and others. The current compact in our constitution is with the Queen as Queen of Australia not of the Queen in any other capacity. Australians can't "sack" the British Queen nor can they "sack" the Canadian Queen for that matter. Accordingly, any reference to the Queen in the Australian context should only be by reference to the Queen in her capacity as Queen of Australia and not of some other realm. The Australianisation of the Crown is further entrenched with the Royal Powers Act 1953.

Further and conclusive proof that Elizabeth II is indeed the Queen of Australia is outlined in Paragraph 2.138 (Page 76) of Volume one of the Final Report of the Constitutional Commission 1998 which states:

The disappearance of the British Empire has therefore meant that the Queen is now sovereign of a number of separate countries such as the United Kingdom, Canada, Australia, New Zealand and Papua New Guinea, amongst others. As the Queen of Australia she holds an entirely distinct and different position from that which she holds as Queen of the United Kingdom or Canada. The separation of these 'Crowns' is underlined by the comments of Gibbs CJ in "Pochi v Macphee" that 'The Allegience which Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia'. (Authors of this report include the Hon E G Whitlam, AC, QC and the Hon Sir Rupert Hamer, KCMG)

If the Queen is to be removed from the position of Head of State of Australia then it must follow that we are removing one of the pillars or agencies of the original compact of our constitution. The potential for drastic changes in the way in which power is shared within the Australian federation arises and therefore the possibility of our well established and stable democracy may be placed in jeopardy unless an identical arrangement is put in its stead. This is highly unlikely.

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Australia is not an Independent Country?

6. The assertion by Paul Keating that Australia must become a republic to make clear and unambiguous our independence and responsibility for our own affairs makes light of the Australia Act. Australia's independence came, for some, on 1 January 1901. For others it would be either with the adoption of Statute of Westminster Act 1942 or when the Australia Act was passed in 1986. In determining what one thinks as to when Australia became truly independent one should not place today's conditions and thinking on events that occurred in another time and under totally different circumstances. It may well be that as we look toward the centenary of Federation in 2001 we will probably come to accept that Australia did obtain its independence, as a Federation, on 1 January 1901. Nonetheless, the Australia Act 1986 formally constitutes the Commonwealth of Australia as a sovereign, independent and federal nation. That said, there can be no notion at all that Australia is not truly independent in any shape or form.

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Our Head of State Should be an Australian?

7. The phrase Head of State is not mentioned anywhere in the Constitution. Internationally, it is generally accepted that the person who holds the highest office in a country is the Head of State of that country. A Head of State may also be the Head of Government. In Australia, the Head of State is vested in the Crown and the Head of Government is vested in the Office of the Prime Minister. Both of these rôles are universally accepted and acknowledged as unwritten conventions.

Section 2 of the Constitution provides for the Governor-General as the Queen's representative and that the Governor-General shall have and may exercise in the Commonwealth during the Queen's pleasure, but subject to the constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him. The Letters Patent relating to the Office of Governor-General of the Commonwealth of Australia dated 21 August 1984 further defines the rôle of, and assigns the requirements for the installation of, the Governor-General. Inter alia, The Letters Patent allow for the absence of the Governor-General out of Australia. Clearly, the Governor-General is able to proceed out of Australia on duty. That said, and with the powers and functions vested in the Governor-General in accordance with the constitution, the Governor-General is able to proceed overseas to represent Australia in the fullest capacity; the only time that could not take place is if the Sovereign is in Australia. In this sense, and for all practical purposes, the office of Governor-General is synonymous with the titular position of Head of State and, therefore, effectively undertakes this rôle. Cheryl Saunders, an eminent authority on Constitutional matters and Director of the Centre for Constitutional Studies in the University of Melbourne law school, puts it another way viz "One result of the long process of Australian constitutional evolution since 1901 is that the position of head of State is effectively divided between the Queen and the governor-general. The Queen is the formal head of State but most of the powers of the office are exercised by the governor-general, sometimes in the Queen's name." (The Australian, 3 January 1997). The media is gradually recognizing that the Governor-General is, in the main, Australia's working Head of State. Tony Stephens writing about the Governor-General and his role in the aboriginal reconciliation process lead his article with "Australia's head of state showed more soul than most officials at this week's Reconciliation Conference." (The Sydney Morning Herald, 31 May 1997).

Accordingly, and contrary to Paul Keating's assertion, each and every Australian is able to aspire to the effective position of Head of State under the current system. That said, and given the proposed tenure of five years for a republican Head of State put forward by the Prime Minister, it would mean that only twenty Australians would achieve this position each century. Given these odds, the more astute Australian gamblers would probably prefer to purchase a ticket in the local lottery or, for more fun and excitement, risk their pay packet at Royal Randwick rather than aspire to such an important position.

Unlike some of the other Dominions, Australia has been extremely reluctant to utilize the position of Governor-General to the full. This is not only the case for outside of Australia but also within; this was evidenced by the most recent visit by His Holiness the Pope, when the Governor-General mostly took a back seat to the then Prime Minister as was also the case for the official celebration of VP (VJ) Day 1995. Both of these events should have given the Governor-General primacy in all respects so that Australia was represented by its titular head and not by its political head. This was the case with the official Australia Day ceremony in 1988 at the Sydney Opera House Forecourt when - and despite the attendance of His Royal Highness, The Prince of Wales - the Governor-General correctly took primacy over all other attendees.

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The Queen doesn't live in Australia!

8. True, and our Prime Minister doesn't live on Macquarie Island! Does it really matter where someone lives? Modern technology is such that the Queen can be in Australia in person in just over a day or be beamed in on television in a nanosecond. If we can give the Australian of the Year award to someone living in the United Kingdom then we should be able to comfortably accept that, by history, the Queen can reside elsewhere. Furthermore, if it is acceptable to allow an estimated 4-5 million Australian citizens to hold dual nationality then it should be of no consequence for the Queen to be one of us! Would the aforementioned five million people want to give up their dual nationality claim? If not, then they surely must rest easily to allow the Queen to share equally in our Australian rites. It is also interesting to note that in the period 1991/92 to 1995/95 inclusive the Department of Immigration and Multicultural Affairs recorded that nearly 72,000 Australian Citizens departed Australia permanently for another country. Some of the more notable Australian citizens who live permanently overseas include:

Greg Norman 1

Robert Hughes

Sir Charles Mackerras 1

Elle Macpherson

Nicole Kidman 1

Arthur Boyd (Now deceased) 1, 2

Kathy Lette

Dr Peter Doherty 1, 2, 3

Patricia Hewitt 4

Notes:

  1. Order of Australia recipient. *
  2. Australian of the Year recipient.
  3. Nobel Peace Prize recipient.
  4. Member of the British Parliament.

* Queen Elizabeth II, The Queen of Australia, is Sovereign of the Order of Australia.

A host of other people involved in business, sport and the performing arts choose to reside overseas either on a temporary or permanent basis. Should we also disown these distinguished Australians as well as our own Sovereign because they happen to live overseas on such a basis? Additionally, an article by Alan Kohler in the Sydney Morning Herald of 3 MAY 1997 suggests that Rupert Murdoch, who gave up his Australian citizenship so that he could become a citizen of the US of A, is now trying to get his Australian citizenship back as well as maintaining his USA citizenship status.

Australians citizens who hold other citizenships!

Rob Guest 1, 2 (The Arts)

Patricia Hewitt 2 MP (UK)

Andy Thomas 3 Astronaut

Jason Donovan 2 (The Arts)

   
  1. Citizen of New Zealand
  2. Citizen of United Kingdom
  3. Citizen of USA
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Australia and the World

9. So much of Australia is now under the financial control of outside interests, not to mention the loss of many of our popular and readily recognisable icons. We talk of world advertisements and world cars. We subject ourselves unquestioningly to International agreements. Live television from overseas is beamed in increasingly without control and the Internet downloads its enormous warehouse of international culture without fear or favour. International travel and tourism has now reached a level where it would now make it almost impossible for another world war to take place. Our sports teams no longer are representative of a local area, and given time we will find that International teams will be simply that - a system where each team is made up of many nationalities. Our media stories are increasingly franchised and as such are rarely altered in form or style. Politicians have also started to align themselves on the world stage. In the developed world, nationalism in its simplest form is almost extinct. Additionally, Australians generally accept the concept that many of our businesses are controlled by overseas interests including significant media groups. The latter should be of more concern, given that we now have the possibility of wrongful information being forced upon us by foreigners eg The Australian newspaper is controlled by a non-Australian.

Our daily lives are also subject to many subliminal aspects of overseas origins eg the introductory music to both the National Nine and Seven TV Network news programmes which mimic their respective U.S. of A. affiliates, while the more visible intrusions of numerous business franchises such as MacDonalds, Toys-R-Us, KFC et al pervade our activities without question. Accordingly, should we not then rid our country of such un-Australian activities and institutions if some consider our Sovereign not one of us?

A younger, and perhaps more indicative, view of these times is Diana Thorp's article "Standing on the outside looking in" (The Australian, Monday, 27 January 1997) in which she tells us that "the debate over the issue (the republic) erodes the view of our national identity, both from within Australia and overseas." Maybe this explains the drop by 22% of those in the age group 18-24 years of age in support of a republic from 71% (Quadrant Research poll conducted on 9-10 January 1993 on behalf of the ARM - The Australia, 23 January 1993) to 49% (Herald-AGB McNair Poll - The Sydney Morning Herald, 3 December 1996.)

It may well become de rigueur for all countries to share a non-elected and common Head of State; after all, that is what the former Australian colonies did when they agreed to unite under the Crown to form the Commonwealth of Australia. In hindsight, that decision may well have solved the problem as to which colony the first Head of State would come from and therefore prevent any resultant friction or bad feeling within the new country! It may well be a case of better we have the Head of State we know rather than the one we don't know.

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The New Zealand Connection

10. As stated earlier, the Act to constitute the Commonwealth of Australia made provision for the admission of other Australasian Colonies and possessions of the Queen. New Zealand was invited to become part of the Australian Federation in 1901 but chose not to do so. Nonetheless, the close historical ties between Australia and New Zealand have remained and considerable political initiatives have been accomplished to align the economies and cultures of our two countries over the ensuring years. With Australia's closer involvement with the South East Asian countries the need for a strong and competitive economy is paramount. Inclusion of New Zealand within the Australian federation, either as one or two states, would certainly strengthen our overall economic and political position in this region. Additional bargaining power would also be effected on the world stage by such an integration. Should an invitation ever be extended to the peoples of New Zealand to join the Australian Federation, and should the people of New Zealand accept such an arrangement, a more efficient and expeditious merger would be effected if we shared a common constitutional Head of State as is now the case. Such an integration should not be dismissed as unworkable because of dissimilarity. Indeed the converse is true and when compared with the push for an integrated Europe such a union could only be considered small fry.

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The Rôle of the Crown has Changed?

11. Paul Keating also asserted that the involvement of the Queen in Australia's affairs is now very limited. There have been no changes in the rôle of the Crown within Australia since federation in 1901 which is recognised by the presence and rôle of the Governor General in the Constitution. In other words, no amendment to the Australian Constitution has been made by the Australian people affecting the rôle of the Crown and, therefore, the Governor-General within Australia since the commencement of Federation on 1 January 1901. The Prime Minister further states in his speech that of the responsibilities The Queen retains, the most notable is her appointment of the Governor-General which, by convention, she does on the advice of the Prime Minister. The appointment of the Governor-General by the Queen is required by the Constitution (S2) and as such is an essential part of the formation of the Parliament in that the Governor-General is the Queen's representative for this purpose. An other aspect that is often forgotten and that is the Royal Powers Act 1953 which details the exercise of statutory powers by the Queen. That Act provides that when the Queen is personally in Australia, any power under an Act exercisable by the Governor-General may be exercised by the Queen acting with the advice of the Federal Executive Council. This Act does not provide for the Queen to act with the advice of the Prime Minister alone. Additionally, a further aspect of the Australian system or form of government is the establishment of, what might best be described as, a dependent circle of control with the connecting of the appointments of the Governor-General and the Prime Minister. That is, the Queen appoints the Governor General; the Governor-General appoints the Prime Minister; and the Queen acts on the advice of the Prime Minister re the appointment of the Governor-General. This system provides an additional and simple barrier of control which will not be available in the former Labour Government's republican model.

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Election of the President

12. The two most touted methods for the election of a president in an Australian republic are:

  1. Direct, popular election by the Australian people, or

  2. Election by a two-thirds majority of both Houses of Parliament sitting together.

In either case and by dictionary definition, but contrary to the Paul Keating's assertion, the election of a president will always be political; that is, the president will not be above politics as is the case with the Queen and, through her by representation, the Governor-General. By the very fact that an election takes place in any system imposes a genre of politics that can not be hidden nor disguised.

The proposal that the current system, in a republic, would be replaced by the election of a president by a two-thirds majority of both Houses of Parliament, sitting together, at which only one nomination for the position of president would be put forward. Removal of the president from office would be similarly executed. This process would be more complex and a less flexible procedure than we have now. Indeed, while it is highly improbable that the election of the president would not be impeded by the proposed method of election by a majority of two-thirds of both Houses of Parliament, the possibility of a stalemate will exist and may defer for a protracted period, or even prevent, the successful election of a president thereby causing undue and unnecessary instability. Additionally, aspects of the American model are also worth noting here! President Clinton , still the subject of several investigations, won the most recent Presidential election (1996) with only 49% of the popular vote. In other words, more than half of those people that voted didn't want him as President! If this figure is translated across the entire eligible (registered) voting population of the United States, we would find that only about 24% voted for Bill Clinton.

More disturbingly, a miscreant President might be able to cling to office if there were not a two-thirds parliamentary majority in favour of getting rid of him or her. If the membership of Parliament had changed significantly since such a President's election, then there could well fail to be a majority of parliamentarians willing to dismiss that President. Even if the membership had not changed significantly, removal of the President could be very difficult.

Similarly, to censure the President under similar guidelines would leave Australia with a Head of State who would have his or her copy book blotted which would not be sustainable for such an important office. Thus, it would show the Parliament's lack of fortitude and willingness to formally dismiss a President. In other words, the Parliament would be passing the buck onto the President. It could also be argued that if a President were censured it would then be incumbent on the President to resign from office. Accordingly, censuring of the President by the Parliament is not a viable option. The issue of credibility of any Head of State is paramount! If we are to have an elected President we should note certain aspects of the much touted American model. The world has still yet to hear the real truth underlying the unfortunate and untimely assassination of John F. Kennedy and it would appear that vital information about this tragic incident is being withheld. Bobby Kennedy, who would certainly have been President in 1968, met with a similar misfortune while Ronald Reagan was lucky enough to survive a similar attack. Much is also known about President Richard Nixon's fall from grace over the Watergate affair but little is known about his behind the scenes activities leading up to the 1968 Presidential election which he managed to win with less than 1% of the popular vote! Nixon, during the 1968 campaign, took the hypocritical stance of supporting retiring President Johnson on the Paris peace talks during the Vietnam war while behind the scenes he managed to secretly sabotage the whole affair by encouraging his links with the South Vietnamese to opt out of the peace talks (Lyndon Johnson's War, BBC World TV, 9 November 1996). If Australia is to have an elected President, either directly by the people or indirectly by the Parliament, will the filling of the position of Australian Head of State be subject to similar behind the scenes negotiating, intrigue, skullduggery and bickering without prior knowledge by the Australian public?

Additionally, the normal convention of where one name only is put forward for a position and for where a vote is also required is that the sole nominee automatically assumes the post for which he or she has been nominated without a vote ever taking place. Accordingly, the Government's proposal for the election of a president where there is only one nominee, would invoke a redundant and, therefore, unnecessary procedure. Put simply, this procedure would be nothing more than window-dressing the existing system of nomination of the Governor-General by the Prime Minister for approval, on advice, by the Queen.

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The President's Powers

13. Before discussing the powers that a President would have under the Paul Keating's proposal, it is important to understand that the existing powers of the Governor-General vary in the way they may be utilised. Some of the Governor-General's powers cannot be initiated without the Governor-General having received advice from the Federal Executive Council. Other powers are initiated, by unwritten convention, on the advice of the Queen's Ministers of State for the Commonwealth while the reserve powers may be initiated by the Governor-General without or contrary to the advice of the Federal Executive Council or the Queen's Ministers.

An important issue here is to comprehend the use of the words "with" and "on".

The requirement for the Governor-General in Council to act with the advice of the Federal Executive Council means that the Governor-General must not act in respect of Section 63 of the Constitution without first having received advice from the Federal Executive Council. It does not mean that the Governor-General has to take that advice. Rather, it means the Governor-General must receive Federal Executive Council Advice before taking action. Theoretically, the Governor-General may act contrary to the advice of the Federal Executive Council in respect of Section 63 of the Constitution.

When the Governor-General acts on the advice of the Queen's Ministers, whether it be by unwritten convention or otherwise, it means that the Governor-General acts as required by the Queen's Ministers. This procedure is currently applied to those powers of the Governor-General mentioned in the Constitution that are not subject to the provisions of Section 63 of the Constitution.

The reserve powers may be initiated by the Governor-General without or contrary to ministerial advice.

The former Labour Government proposed that, in an Australian republic, the Constitution should require the President to exercise the reserve powers in accordance with existing constitutional conventions but also proposed to retain the current position, where the Constitution does not set out those conventions. In other words, a President would hold exactly these same powers as does the Governor-General now which would or could still allow for a repeat of the 1975 dismissal. Subsequently, Paul Keating in his address at the University of New South Wales on 11 November 1996, re-iterated his belief that the reserve powers should remain with the Head of State provided that the source his or her power derives from the House and the Senate. Keating's more recent concern about this particular issue is with the prospect of the Senate growing in size as population growth expands the numbers in the House of Representatives. The size of the Parliament is determined by the number of Senators (The number of members in the House of Representatives shall be, as nearly as practicable, twice the number of Senators) which can be changed without reference to the people as was the case by the Representation Act 1983. If this is the only concern that Paul Keating has about a directly elected Head of State then maybe the Constitution should be changed to only allow for a change in the number of Senators by referendum alone. At least this would give the Australian people the final say on how many federal politicians that we should have and therein keeping the size of government in Australia under control.

Additionally, the proposal that the Constitution be amended to make clear that the President exercise all his or her powers, except the reserve powers, either on ministerial advice or on the advice of the Federal Executive Council as required shows concern for two reasons:

  1. Firstly, those powers which require the Governor-General to act with the advice of the Federal Executive Council will be changed so that the President will be constitutionally required to act on the advice of the Federal Executive Council, and

  2. Secondly, for those powers currently stated in the constitution and for which the Governor-General acts on the advice of the Government by unwritten convention will be changed so that the President will be constitutionally required to act on the advice of the Government. The powers of command in chief of the naval and military forces will be similarly treated within a Keating designed republic.

Both of these cases will mean a shift of power, as currently exists, from the Crown to the Government of the day. This proposal, as outlined in the then Prime Minister's speech, is contrary to the statement made in the Questions and Answers Paper which reads "The Government proposes that an Australian head of state have the same functions and powers as the Governor-General". Nonetheless, the sharing of power will be altered significantly in favour of the politicians. In all aspects this change to our form of government could not be considered minimalist as propounded by the Paul Keating. The President will only be left with the reserve powers which are, in the main, inconsequential on a day-to-day basis.

Under this arrangement Australia would have a puppet President and the office of Prime Minister would have the potential to become a dictatorial dynasty. The latter statement is made with the knowledge that Australians do not elect their Prime Minister. Indeed, selection for this office comes about as the result of members of minority groups (political parties do not enjoy large memberships) voting to say who their leader will be - hardly democratic when the powers of the office of Prime Minister will increase significantly under a change to a republic should that come about.

Another point to consider is the composition of the Federal Executive Council for which there is no minimum number set. However, the Constitution does state that until the Parliament provides otherwise the Ministers of State shall not exceed 7. Parliament has subsequently provided for a maximum of 30 Ministers of State. Unless there is a "reasonable" minimum number of ministers for state set, a Prime Minister could, with the increase in allocation of powers to the Federal Executive Council, install himself with a far greater authority than is now present. Inter alia, this would also give the Prime Minister total control over the Defence Forces. Precedent for diminishing the size of the Federal Executive Council has already been established when Gough Whitlam and Lance Barnard were the only 2 ministers when Mr Whitlam's labour party came to power in late 1972. If the Federal Executive Council consisted of only 2 ministers then, what is there to stop there only being 1 minister in the future? The problem would exacerbate from that when Gough Whitlam established his tiny ministry as the Governor-General literally held powers that would, in reality, be held by a Prime Minister in any of the republican options touted by Paul Keating (former Prime Minister), Malcolm Turnbull (ARM Chairman), George Winterton (Professor of Law at the University of NSW), and former Senator Teague. You can view a pictorial presentation of the power shift under these arrangements by going to the Presidential Power Charts. A brief summary of the various proposals of how one, little, two-lettered word - which is not in the current constitution - can change the whole balance of power with little or no knowledge by the Australian public is shown below:

Keating's proposal with "on"

Teague's proposal with "on"

Turnbull's proposal with "on"

Winterton's proposal with "on"

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Qualifications of the President

14. The Constitution does not set out qualifications for the office of Governor-General. In an Australian republic, Paul Keating stated that the President would:

  1. be an Australian citizen of voting age,

  2. not hold any other remunerated position while in office, and

  3. that serving and former politicians (Commonwealth, State and Territory) should be prohibited from becoming President until five years have passed since their departure from Parliament.

That the only basic qualification to be the President is to be an Australian citizen of voting age shows cause for concern. Theoretically, that means any Australian citizen from 18 years of age (or even 15 years of age if recent proposals by Young Labour take root) through to 100 years or more would, constitutionally, be able to hold this office. If we can put an upper limit on our Judges of any court raised by the Federal Parliament then surely we must place the same or similar limit on the President. Similar consideration should also be given for a minimum age. Clearly, an 18 year old (let alone a 15 year old) would not have the maturity, experience and where-with-all to handle such an important position. Under our current system the monarch is trained from birth. This has been ably demonstrated by the current Queen of Australia, Queen Elizabeth, as acknowledged by Paul Keating in his speech.

The concept of only an Australian citizen being allowed to hold the office of President has interesting and additional considerations. In the simplest concept this may seem appealing. However, the more complex issue of dual nationality must arise. On one hand the Prime Minister is saying that we cannot have the Queen as our head of state because she is British, but under his plan for a republic we could, presumably, have as President an Australian citizen who is also a British citizen. This could also be said for many other nationalities and would also include those countries that would claim first allegiance to their citizens in the event of war. For example, it is mandatory in some countries that its citizens serve in the armed forces of that country not only in war but also for a term of national service for training purposes.

Under the former Government's proposal for a republic we could possibly have a 20 year old Australian citizen, who holds the citizenship of another country, elected as President and who may subsequently have to return to the country of his/her second citizenship to meet the needs of the Government of that country. The only way to solve this is to limit the office of President to those people who do not hold citizenship of countries other than Australia. In other words, any Australian citizen who holds dual nationality would not be eligible for the office of President.

Under current plans, this may mean that an estimated 4 to 5 million Australians, or about a quarter of the Australian voting population, would be able to become President and also hold allegiance to another nation. Clearly, this must be unacceptable given the proposal that the President be an Australian. There are really only two options for any Government in this regard. They are:

  1. Stay with the current proposal and alienate three-quarters of the nation because of a double standard with nationality status, or

  2. Disallow all those Australian citizens who hold dual nationality from holding the office of President and thereby denying, as Paul Keating put it, each and every Australian being able to aspire to be our Head of State.

On the surface, it would seem that either of these two options would be politically untenable.

The question of the Head of State not holding any other remunerated position while in office is sound but should be expanded upon to include phraseology to cover both the private and public sectors.

Paul Keating also made it clear that the position of President should be above politics. To ensure this and contrary to the Government's proposal, former politicians (Commonwealth, State and Territory) should not be allowed to hold the position of President. Such a move would probably not enjoy the popular support of the Australian public. While former politicians from both the major political parties have successfully served as Governor-General, they have done so as representatives of the Crown and as such have had the additional responsibility of representation placed upon them. This will not be the case in an Australian republic.

Two other aspects of the Paul Keating's proposal are at odds with his policy that the office of President be above politics. They are:

That State Governors, except Governors from non-republican States, would act as the President in the absence of the President of Australia may present problems. At this stage, and in an Australian republic should that occur, it is not known how Governors in a republican State would be appointed or elected. In fact, it is not even known whether any republican State would have a Governor at all. Once again, the possibility of an elected Governor holding political views differing from those of the Federal Government is possible and, therefore, holds the potential for instability.

The President of the Senate (a serving politician) could possibly act as the President of Australia in the President's absence which would bring a political overtone to the situation if the President of the Senate is of a differing political party to that of the party that holds the power in the House of Representatives. It is not known whether or not The President of the Senate would continue to act as President of the Senate while acting as the President of Australia. If it were required for the President of the Senate to relinquish that post then the balance of power in the Senate would be changed. Alternatively, if the President of the Senate is able to act in both positions concurrently it may bring into question the impartiality of the President of the Senate while acting as the President of Australia. That said, surely the recent relevations regarding the current Deputy President of the Senate, Senator Mal Colston, should put to rest any argument that a serving politician should assume the role of acting President of an Australian republic.

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Changing the Australian Constitution

15. In his speech, Paul Keating reaffirmed only part of S128 of the Constitution; that is that the Australian Constitution cannot be changed in any way without a referendum, and to succeed at a referendum a proposed change must win the agreement of a majority of voters in a majority of States and a majority of voters overall.

However, other aspects of S128 of the Australian Constitution and The Australia Act will, in all probability, have an effect. To date, little has been said of the penultimate paragraph of S128. That paragraph requires that no alteration diminishing the proportionate representation of any State in either House of Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of a State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

Section 7 of the Australia Act 1986 recognises the States as separate constitutional monarchies in that Her Majesty's representative in each State shall be the Governor and that all powers and functions of Her Majesty in respect of a State are exercisable only by the Governor of the State. That said, repeal or amendment of the Australia Act (and the Statute of Westminster) may occur by an Act of the Parliament of the Commonwealth passed at the request or with the concurrence of the Parliaments of all the States and, subject to subsection (3) of the Australia Act, only in that manner.

Clearly, there is a nexus between the Australian Constitution and The Australia Act relating to the changing of the Australian Constitution and the rôle of the Crown in it when taking State matters into account. It may well be that for any referendum to be passed to establish an Australian republic it may also require a majority of people in each of the States as well as a majority overall. This, presumably, is a matter of law that should be resolved before any referendum on a republic takes place. If this does not happen, the resultant outcome of such a referendum may be the subject of High Court action, which may result in a lengthy delay before a positive outcome is known or may even leave the issue in deadlock. This would be extremely embarrassing for any Government which proposed the referendum in the first instance. It may even sectionalise the Australian community to such an extent to cause civil disobedience.

Additionally, it would seem that the Australia and Westminster Acts need to be changed before any referendum takes place on whether or not Australia should become a republic to allow for the States, should the people of the States so desire, to become republics in their own right first. Otherwise, the absurd situation of a republican Australian federation could exist where all of the six States are constitutional monarchies. As well, the subsequent establishment of any new State would also require that State to become a constitutional monarchy unless such sequential change was implemented.

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The States

16. Section 106 of the Australian Constitution saves the Constitutions of each of the States. Accordingly, the possibility of some States becoming republics and others remaining constitutional monarchies is highly possible. Should this be the case, Sections 99 and 117 of the Australian Constitution may stand the risk of being violated. Already the Government has proposed that only Governors from Republican States could act as President in the President's absence. Such contradictory circumstances may also allow the Government of the day to coerce, by intimidation by the use of financial means or otherwise, the remaining State constitutional monarchies into becoming republics against the will of the people of that State.

As stated earlier, the preamble to the Act constituting the Commonwealth of Australia states that The People of New South Wales, Victoria, South Australia, Queensland and Tasmania agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland. That said, if it is acceptable that Australia can become a republic contrary to the preamble statement, then it must also be acceptable that the requirement for the Federation to remain indissoluble is no longer valid. Accordingly, this may give grounds for any one State to leave the Federation if a republican form of Government was repugnant to the people of that State. Therefore, any change to a republic by Australia should not rule out the possibility of secession of one or more States from the Commonwealth of Australia.

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What has to be changed?

17. Changing our current form of stable government in Australia into a republic will require more that just a simple referendum in accordance with section 128 of the Constitution. There are some 45 sections of the Constitution that will require change and each elector will need to fully understand the complexity of each amendment before they will feel confident to undertake such change. Indeed, supporters of a republic are asking for more changes to be made to our Constitution in one foul swoop than there have been proposals of change put to the Australian people since 1901.

To date, there have been 42 referendum questions put to the Australian people of which only 8 have been passed. Of those that failed there were 5 that received more than 50% of the formal vote (ranging from just 50.3% to a high of 62.22%) but did not gain the required additional support in a majority of States. Of the 8 that were passed the formal vote range was between 54.3% and 90.7%. The outstanding high of 90.7% was, understandably, obtained for the recognition of the indigenous community in 1967.

The Australia Act will also require amendment by either a referendum or by unanimous agreement of all of the State Parliaments.

Additionally, the Statute of Westminster will need amending by the conferring of a special power on the Commonwealth Parliament by way of a referendum to repeal or amend Section 8 of the Westminster Act so that repealing or amendment of the preamble and/or covering clauses of the Constitution Act may be accomplished. Changing of the Statute of Westminster will need to be watched extremely carefully by the electorate so as to ensure that only the Constitution Act is repealed or amended in this manner and not the Constitution itself .

That said, the issue of State Constitutions will also need addressing. Most States will require a referendum to be held while Victoria will need an absolute majority of the whole numbers in each House of that State Parliament to repeal or amend relevant provisions.

There are also many non-constitutional aspects of our daily life that would require change eg change to name or symbols. To date, no one has been able to accurately determine the financial cost to the taxpayer of such changes. Additional costs to the taxpayer will be incurred as a result of holding the people's convention, a plebiscite and associated referendums (including the several State referendums), associated on-going administrative expenditure and other administrative costs that have already been incurred i.e. The Republican Advisory Committee Report. That said, just the execution of a plebiscite and one referendum alone would nearly top the $100 million mark!

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Change for Change's Sake?

18. There is absolutely no doubt that the people of Australia have the right to amend the Australian Constitution as they so chose in accordance with all of the requirements of S128 of the Australian Constitution and the constraints of the other several constitutional documents. It is also right and proper that, from time to time, the Australian people review the rules that govern Australia. However, any significant change to our form of government such as moving to an Australian republic, and thereby changing the powers and functions of our Head of State as proposed by the former Labour Government, should only be taken after careful and lengthy consultation with each and every Australian entitled to vote at such a referendum.

More importantly, if there is a perceived need to change our Head of State arrangements and the associated powers and functions of that office, then there must be a concurrent and equal need to look at and question the powers and functions of the people who represent the Australian people in both of the Houses of Parliament of the Commonwealth of Australia. In other words, if we are looking at changing or shifting the powers of our Head of State to the benefit of the people who represent us (the politicians) then we should simultaneously undertake a concurrent and exhaustive investigation of the functions and powers that we Australians give our politicians.

Paul Keating's proposal on how Australia could become a Republic has not been presented as a basin of well-founded arguments and details especially on the very important issue of power sharing between the three pillars or agencies of the Federal Parliament which can be easily understood; rather, it is a colander of vagaries and party political ideology seemingly lacking in meaningful discussion and intellectual worth.

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