October 27

Constitutional history rewritten

Why are the republicans so coy in refusing to reveal their plans for the constitution and the flag, I asked on the ABC site, The Drum Unleashed.

[You can read this there, and add your voice to the increasing number of comments. Just click here ]

I continued:

Instead they seem content to pass their time trying to rewrite history.

A recent example was when Channel 7 investigated the still-unpunished murder of two young Australians by the Irish Republican Army. They furiously denied that Gerry Adams had campaigned for the Yes case in 1999, and even that he was here then. When The Australian confirmed that all this was true, their media director David Donovan launched a tirade of personal abuse. He even disparaged the colour of my skin, which comes from my obvious Eurasian origins.

Another was to suppress the amusing story that Malcolm Turnbull and the ARM wanted to have two words removed from the 1999 referendum question.

One was ‘president’ and, believe it or not, the other was ’republic’. You can guess what the focus groups and polls were telling them. Even the republican media poured scorn on them.


Now they are saying constitutional monarchists were just ‘scaremongering’ and ‘mythmaking’ in the 1999 referendum when we warned that the republicans were ignoring of fundamental rule of the Commonwealth of Nations. This was that if we became a republic, any one of the other 52 Commonwealth governments could block our continuing membership. That rule was put in place in 1948 and amended in 2007.

Our warning about this rule was confirmed by the Commonwealth Secretary General in 1999, by the 2007 CHOGM and by two very clear precedents which demonstrate its application.

But in a recent opinion piece here, the republicans demonstrated once again their inability to check the facts before they rush into print.

It is even more extraordinary that law professor George Williams actually repeats this in a recent book calling for changes in the way we conduct referendums.

On May 10, 1999 the republican Attorney-General Daryl Williams QC declared the ARM position in the Canberra Times:

Australia would not need to reapply for membership of the Commonwealth if it becomes a republic as constitutional status is not a criterion of membership. This would mean that if the proposed change were supported Australia would still participate in the Commonwealth Games.

This was wrong.

…CHOGM says reapply…

This can be seen from the 2007 CHOGM which unanimously adopted this recommendation:

In cases of changes in constitutional status, as when a monarchical realm becomes a republic, it was agreed that the old procedure of reapplying for membership is not necessary. It is recommended that where an existing member changes its constitutional status, e.g. from a monarchy to a republic, it should not have to reapply for Commonwealth membership as long as it continues to accept all elements of the criteria for membership.

The 53 heads of government and the Secretariat ought to know better than the ARM, or either of the Williams, Daryl or George, what are the rules under which they operated until 2007.

On becoming a republic you had to reapply for membership. This dates from the London Declaration of 1948, which some say gave birth to the modern Commonwealth.


It is absolutely clear that if Australia had become a republic in 1999 we would have had to reapply for membership and any member could have vetoed us. This is not scaremongering or mythmaking – it was the rule.

Two precedents support this conclusion. In a 1960 plebiscite the South Africa apartheid government campaigned to turn the country some vague undefined republic, but promising she would remain in the Commonwealth. The whites split on racial grounds, the mainly Afrikaners winning by 52.3 per cent to 47.7 per cent against the mainly more liberal English speakers.

But when at least one Commonwealth government indicated it would exercise its veto, South Africa withdrew its application.

…first republican movement…

It is interesting to recall one parallel here with pre-federation Australia. The first significant campaign for a republic in Australia, led by The Bulletin, was to establish an apartheid republic thus escaping the more liberal British policies concerning immigration and Asian relations.

The second precedent was when Fiji's membership was deemed to lapse in 1987 after it became a republic in which the indigenous Fijians would be dominant. It had become clear that at least India would veto the Fijian application.

Incidentally, I do not believe that either precedent would have resulted in a different conclusion had the post-2007 rule applied. The vetoing states would have relied on the proviso, as they could in relation to any future change. You see, it is the vetoing state which will judge whether the proviso applies.

…ARM denies the truth….

Notwithstanding this clear statement of the Commonwealth rules, which were well known to anyone who knew anything about international law and the Commonwealth, when ACM reminded the Attorney-General and the other republicans of these rules, the ARM fell into denial.

Instead of bothering to check the rules they rushed out a knee-jerk press release on May 13, 1999 headlined: "Australians for Constitutional Monarchy talk nonsense about Australia's membership of the Commonwealth." My warning was dismissed as "silly", "an insult to the intelligence of all Australians" and "shameful".

Former prime minister Bob Hawke called me a liar on a national radio program.

But as readers can see from the very clear Commonwealth recommendation of 2007, I was accurately stating the law of the Commonwealth. I’m not waiting for an apology.

…Secretary General confirms…

Back in 1999, I did the sensible thing. I wrote to the Secretary General of the Commonwealth, Chief Emeka Anyaoku, requesting a ruling.

He replied:

You are right in your understanding of the procedures within the Commonwealth when a country changes its constitutional status to that of a republic. On being notified of the change by the government concerned and in the light of an express wish to continue Commonwealth membership, I would then contact all other Commonwealth countries seeking their concurrence for the change. (My emphasis:DF)

He added that normally “this process is not more than a formality”. That is true if you prepare the way, and you have no one against you.

…a diplomatic problem…

But we did. The Malaysian prime minister Dr. Mahathir was still in office. He had had screaming public disputes with two Australian prime ministers, Bob Hawke and Paul Keating, both of whom had foolishly engaged in megaphone diplomacy against him. So he had vetoed our membership of at least one other international organisation. We were really on his black list.

With Chief Anyaoku’s approval, I released his letter to the media, pointing out that if Australia were to become a republic, it would be outrageous if our continuing membership were put in issue (It is published in my 1999 book, The Cane Toad Republic).

But I warned that were Australia to become a republic, some groups in Australia might lobby other Commonwealth members. They were already doing this in other international bodies. They could argue that our policies were in breach of Commonwealth principles.

“What would happen is impossible to predict,” I said, “Let us hope any change did not coincide with similar diplomatic incidents to those where an Australian prime minister once called a Commonwealth prime minister "recalcitrant" or its legal procedures "barbaric", as happened under two previous governments.”

I pointed out that our presence in the important forum for European-Asia economic issues, ASEM, had been denied by the veto of just one country, Malaysia. (We were subsequently admitted, the prime minister recently attending a summit on this in London)

I warned that in recent years Australia has been disappointed in some of its plans for our role in international forums – quite often after the holding out by well-known ARM supporters that we would be successful.

One was in relation to the secretary-generalship of the Commonwealth itself, the other our candidature for a seat on the Security Council.

I said the ARM and its supporters were well aware that Australia does not have the enormous resources of other countries (and groups of countries) to buy international influence. Nor does it have superpower clout. As an old western democracy – actually multiracial, tolerant and welcoming – it is too frequently portrayed as insular, intolerant and racist, even by elements within Australia.

It is an easier target for international busybodies than those countries with authoritarian governments, indifferent to human rights, where an increasingly intolerant monoculturalism prevails.

…more abundant caution…

Our membership of the Commonwealth, I said, is precious. It is a club in which we play – and have since its foundation always played – a significant role with countries which are particularly close to us. It allows us to compete in the Commonwealth Games.

Rather than denying the existence of the documented Commonwealth rule that when a realm becomes a republic all other members must agree to its application for continuing membership, the ARM should be investigating how best to ensure this agreement.

It was –and still is – the ARM that is proposing change.

…what they must do…

It should do three things. First, the ARM should reveal its plans for the Constitution and the flag. Just tell the people precisely what changes they are proposing.

It is as if they are marching down the street, chanting “We want a republic… but we haven’t the foggiest idea what sort of republic we want.

Second, they should demonstrate to Australians how the model they are proposing will be better than our present constitutional system, and that there will be no unexpected results.

Third they should stop inventing stories, and do the hard work to support their case.

And perhaps after Professor George Williams reads the Commonwealth’s rule which CHOGM has acknowledged he will see his publisher, the University of NSW press, issues a corrigendum correcting what appears to me to be the error in his referendum book.

                         Professor David Flint is the national convenor of Australians for Constitutional Monarchy.


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