CALL TO THE NATION: RETAINING AND ENHANCING CONSTITUTIONAL GOVERNMENT
CLOSING OFF THE PATH TO AUTHORITARIAN RULE
Constitutional government wrongly sidelined in pandemic
Three decades of taxpayer-funded search for politicians’ republic surely enough
[ This Call to the Nation was presented to Assistant Minister the Hon Matt Thistlethwaite by an ACM delegation on 9 August 2022 ]
SUMMARY: Constitutional government was wrongly sidelined during the pandemic. This is the crucial and most important constitutional issue facing the nation. IAs to proposals to remove the Australian Crown from the constitutional system, surely three decades of a taxpayer-funded search for a model is enough.
THE CALL TO THE NATION: ACM,[i] the largest, oldest, most experienced, and, as Tony Abbott has said, the ‘fiercest’ defenders of the Australian constitutional system,[ii] calls for an entrenched return to constitutional government, especially in times of crisis such as during the COVID pandemic when constitutional government was far too easily sidelined.
Indeed, our leaders adopted measures more similar to those imposed by Beijing, rather than the approach expected of, and assumed in, a constitutional democracy. Measures were taken without consultation and without revealing the advice, including modelling, which motivated those measures. Heavy burdens were imposed on the nation and on individuals without consultation or without observing the traditional safeguards to ensure there was no abuse of power. The financial and too often the personal cost to many Australians was significant and in relation to being denied seeing dying relatives, cruel and unnecessarily so. There was little deliberation with the Australian people who, after all, are said to be sovereign in this Commonwealth. The result was that authoritarian rule was far too easily imposed on the nation.
A comparison with other remote island nations defeats the claim that there was some advantage in imposing of authoritarian rule.
This now stands as the path which can be readily taken to impose such rule again, even a dictatorship.
This must never happen again.
At our 22nd National Conference last year, ACM concluded that this issue is one for urgent constitutional repair, taking obvious priority over the other issues currently on the constitutional change agenda. At the same time, we must ensure that the safeguards we presently have or assume we have, are strengthened.
On that very subject, the quasi-official Australian Republican Movement has, over the last three decades, produced three models to radically change Australia’s long-standing and successful system of constitutional government. All have been what ACM long ago characterised as ‘politicians’ republics’, compared with our crowned republic which provides leadership beyond politics as well as a constitutional guardian.
The ARM’s first republican model was withdrawn from the 1998 Constitutional Convention as incompatible with our constitutional system. This was after ACM indicated the model would unwittingly import into Australia features of the French Fifth Republic, which was installed after the collapse of the Fourth Republic, and then a former Victorian judge and governor, the Hon Richard McGarvie expressed other concerns.
The ARM’s second and third models would significantly weaken and not strengthen constitutional government.
The second republican model was rejected by the people in the 1999 landslide.
The third and latest republican model has enjoyed little support, even among republicans. It first stripped the president of any role as a constitutional guardian. After ACM’s protest, just one aspect was restored. In allowing for a presidential election, it chooses a guided democracy model which will result in the politicians doing back-door deals to select the official and only candidates.
It is clear that the search for an acceptable model of the standard of the existing system in providing constitutional government has a long way to go before it can be found, if ever. That search is, of course, a matter for the Australian Republican Movement.
In the meantime, with 12 official votes and inquiries into how to remove the Australian Crown from the Constitution, and now with the appointment of an Assistant Minister for the Republic, the question must be asked why, after three decades, should even more taxpayers’ funds be poured into this official wasteful and divisive exercise?
The principal reason offered for this, that only in some politically endorsed model can we have an Australian as head of state, is manifestly untrue. We already have ─ and have long had ─ an Australian as head of state. Her Majesty’s only significant constitutional role is to appoint and remove the viceroys ( governors-general and governors), normally on advice. Almost all of the powers of the Australian Crown are exercised by the viceroys. In fact, the Australian Constitution was the first in the British Empire to provide that the Governor-General directly exercise executive power, and not under a delegation as was normal in all colonies and even in the first dominion, Canada.
Moreover, every Australian government, Coalition or Labor, insists to foreign governments that whenever the Governor-General proceeds on a State Visit, he or she is, without condition, the Australian head of state. In this regard, it should be noted that the Hawke Government cancelled a State Visit to Indonesia by the then Governor-General, Sir Ninian Stephen, over this very question in 1983. The Indonesian government then apologised. ( It was said the President was misinformed by an Australian diplomat with republican tendencies). A State Visit took place during the following year.[iii]
With the unique experience of being the only existing organisation in the country to have successfully led a referendum campaign to victory ─and that against overwhelming odds ─ ACM warns that, in their considered opinion, a second referendum is doomed to an even greater defeat than in 1999.
Most Australians would agree that three decades of pouring taxpayer funds into this exercise is surely enough.
Australia must move on.
ACM makes ten points: ─
1. THAT the COVID-19 pandemic has revealed that a constitutional change to restore the checks and balances in relation to the making of regulations, applicable even in colonial times, is urgently needed to avoid the taking of further ill-considered, dictatorial measures borne by the Australian people. Such a constitutional change should obviously take priority over any other proposal.[iv]
2. THAT any constitutional change must not strip from its core what our oldest institution, the Australian Crown provides, the nation’s ultimate constitutional guardian and leadership beyond politics. The Australian Crown is crucial, not because of the power it wields, but the power it denies others.
3. THAT accordingly, Australia must retain the Governor-General as prescribed in the Constitution, who, according to the express opinion of the nation’s founders sitting in the High Court, is the ‘constitutional head of the Commonwealth’[v] and who, in accordance with the diplomatic practice of all Australian governments, ALP and Coalition, is declared to be Australia’s head of state.
4. THAT in accordance with the decision of the people at Federation, confirmed in the landslide result in 1999, Australia should retain her Sovereign, presently Queen Elizabeth II, as Queen of Australia.
5. THAT, in the view of many who have studied the question, including the 25th Prime Minister John Howard and the 28th Prime Minister Tony Abbott, Australia is already a republic, a crowned republic.
6. THAT the process in any constitutional referendum must remain as it has been hitherto, fair and reasonable. In particular, the question must not be manipulated, as suggested by the ARM, to favour the YES case.[vi] This would be in the untruthful implication that only in their as yet unknown republican model can we have an Australian as Head of State.
7. THAT in any constitutional referendum, reasonable public funding be awarded equally to the YES and NO cases.
8. THAT plebiscites, which according to legal opinion are of doubtful constitutional validity when used for those matters where the constitution prescribes a referendum, should not be used.[vii] If public consultation before the referendum is thought desirable, the constitutionally acceptable way by calling a constitutional convention, preferably elected and appointed as in 1998.[viii]
9.THAT in the event of public funding, this be administered by YES and NO committees appointed in accordance with votes cast by Australians in the previous constitutional convention election.[ix]
10. THAT in the event that a convention is elected and appointed, it should also undertake what the Australian people have never had an opportunity to undertake in well over a century, a review of the Constitution.[x]
[i] Australians for Constitutional Monarchy (“ACM”) is Australia’s oldest, largest and most effective organisation established for the retention of our constitutional monarchy or, as some say, our crowned republic. Holding its first public meeting in June 1992, ACM was founded by a diverse group of prominent Australians, including the former Chief Justice of Australia the Rt Hon Sir Harry Gibbs, Justice Michael Kirby, future judge Lloyd Waddy QC, Neville Bonner AO, Dame Leonie Kramer, future judge Barry O’Keefe QC, the former Lord Mayor of Sydney, Alderman Doug Sutherland AM, Sir John Atwill, prominent artist Dr Margaret Olley and the Hon Helen Sham-Ho MLC.
With the then largest peaceful non-industrial meeting in Macquarie Street Sydney in 1996, ACM began a campaign which eventually led to the restoration of Sydney’s Government House to the Governors of NSW. With 72% of the monarchist vote in the election for the 1998 Constitutional Convention, ACM led the other five smaller monarchist groups in a united front. Based on the convention election results, ACM was awarded eight of the ten seats on the referendum Vote No Committee. Against the mainstream media, most politicians, and elites, ACM’s campaign won the republic referendum nationally, in all states, and in 72% of electorates.
ACM is the only organisation in Australia with experience in successfully winning a referendum against the mainstream media, most sitting politicians, big business and other elites.
[ii] Let’s complete the Constitution: Tony Abbott appeals to monarchists on recognition, by Dennis Shanahan, The Australian,30 November 2014.
[iii] Sir David Smith, Head of state: the governor-general, the monarchy, the republic and the dismissal, 2005; Sir David Smith, Australia’s Head of State: The Definitive Judgment, Australian Law Journal, December 2015, 89 ALJ 857, https://norepublic.com.au/australias-head-of-state-the-definitive-judgment/
[iv] Hon Ken Handley QC, Constitutional Government and Emergencies, orepublic.com.au/constitutional-government-and-emergencies/?fbclid=IwAR1jebZd7344z0h43s11RlLBHVaFc1sj4s9MdDfyhGvoHPkGf2jvmRozlrE
Traditionally, these were a matter for determination in the executive council. and would also be subject to disallowance in either House. (More reason then, to re-establish the Queensland Legislative Council abolished by the politicians over a century ago, contrary to the express wishes of Queenslanders.) According to the Senate Standing Committee for the Scrutiny of Delegated Legislation, nearly 20 percent of all delegated legislation made in response to the pandemic between January and July 2020 was exempt from disallowance. These included all 27 legislative instruments made under the Biosecurity Act, and six Advance to the Finance Minister determinations, together allocating an additional $2.1 billion of public funds to aspects of the government’s response to COVID-19.
Some legal authorities advised the committee that such regulation-making, that is where Parliament abandons any scrutiny, could well be unconstitutional. Not one of these passed through the executive council . They were all made by the minister who recommended them. This too could well be found to be unconstitutional , being in breach of the provisions concerning the executive power of the Commonwealth.
As regulations have the force of law, ACM believes they should be subject, as far as possible, to a similar formality, rigour and openness as governs the making of the acts of parliament under which they are made. The openness of the process would be assisted significantly if each proposed regulation were supported by an explanatory memorandum similar to that which accompanies a bill on its introduction.
The role of the governor-general (and in the States, the governor) should be as now, acting on advice but ensuring that proper process is observed, being satisfied he or she has the power to act as advised and that if there are any conditions on the exercise of that power, that these had been fulfilled. In addition to the role of the executive council, and consistent with the way the authorizing statute was passed, the power of each house of parliament to disallow any regulation should in all cases be restored.
On this, the Senate Standing Committee recommended, without dissent, a return to parliamentary supervision of the power to make regulations. ACM believes this should be associated with a return to the traditional role of the executive council in the making of regulations. While the United States was in many ways a model for the Australian Commonwealth, we have regrettably not followed her requirements of transparency and public participation in making regulations, safeguards which are admired by many scholars as consistent with the fundamentals of deliberative democracy.
[v] The King v The Governor of the State of South Australia [1907] HCA 31; 4 CLR 1497; Hon. Ken Handley QC, The Governor-General is Australia’s Head of State, Spectator Australia, 13 July 2022; David Flint, Head of State resolved by Founders sitting on High Court in 1907 – ACM’s consistent and crucial case, from Quadrant 2008 , reprinted https://norepublic.com.au/head-of-state-resolved-acms-consistent-and-crucial-case/
[vi] This would mean that the Question, which would normally incorporate the long title of the bill, should offer no unfair advantage to either the YES or NO case, that is, that the question should be obviously fair. A question asking whether Australians approve the republic in the referendum bill without describing how the president would be appointed and removed or with the addition of the words “with an Australian as Head of State’ “would, we believe, constitute an attempt to manipulate the result. This is because the latter words would untruthfully suggest that we do not already have, and have long had, an Australian as head of state, the governor-general.
In addition, the Yes/No booklet, introduced by Labor Prime Minister Andrew Fisher in 1912, should be made available to every voter. ACM remains opposed to what ACM named in 2013 as the ‘garbage tin’ amendment to Andrew Fisher’s scheme. Under this, instead of the Yes/No booklet going to every voter, it is now to go to every householder. Marked “To the Householder” and therefore most likely to end up in the garbage tin, it will probably be seen by very few. ACM suspects that this was the intention of the legislation.
[vii] ACM is opposed, in principle as well as constitutionally, to the use of plebiscites in matters where the Constitution prescribes a referendum. ACM has no objection in other cases. According to senior counsel, the Hon. Alister Henskens SC MP, the use of plebiscites on these occasions is unconstitutional: Henskens, Alister: “Can there be a Plebiscite oil the Road to a Republic?” [2019] SGSocUphAUCon 10; (2019) 31 Upholding the Australian Constitution 147. Plebiscites are unregulated by the law, open to misinterpretation, potentially damaging and potentially seriously embarrassing to constitutional order. This would occur when a Yes vote in a plebiscite based only on a vague question were followed by a referendum based on a detailed bill which resulted in an apparently contrary vote.
[viii] If the government wishes to engage in any conversation with the electorate prior to the proposed second republic referendum, ACM suggests a constitutional convention on the 1998 Howard-Minchin model be adopted. Delegates would thus be unpaid, half elected on the constitutional model for joint meetings of the Senate and House and the other half nominated. Part of these would be ex officio leaders from the federal state and territory legislatures as well as members nominated by the Prime Minister. John Howard determined that some should be eminent Australians who would not be interested in standing for election, and others would be from those strata unlikely to be elected, especially the young and the indigenous. Most nominated, especially the ex officio ones but also those in the gift of the Prime Minister were significantly more republican than monarchist. ACM did not object to this result as it could not have been known in advance. The Convention eventually favoured the ARM preferred model but failed to attract the absolute majority required. John Howard decided, with the widespread approval of republican delegates, that the result was so close, that the preferred republic should be put to the people in a referendum.
[ix] ACM proposes that following the 1998-99 model, YES and NO case ten-person Committees administer any public funding under strict federal rules and supervision. We suggest these be appointed as in the first republic referendum, that is, in accordance with the results of the last Constitutional Convention election. If there is no new Convention prior to the second referendum, this would mean that all seats on the YES Committee, would go to the ARM. Two of the seats on the NO Committee should go to the Real Republicans, assuming they remain opposed to the ARM model which they have so far indicated. (See David Muir, Letters, The Land, 20 January 2022). Eight seats would go to ACM.
[x] Given that the people have not had an opportunity to review the Constitution in the last century and a quarter, there would be an advantage in inviting the Convention to continue to operate with the aim of producing such a review. Given that the delegates would be unpaid and much of the work done through committees communicating by modern means, this would be a relatively economical operation. It would follow the procedures of the Federation Conventions. ACM suggests that this operate through the successful Corowa principle prior to Federation, that is with government and opposition committed to putting the Convention’s final proposals to the people in a referendum.