Australia in 1999 is in almost exactly the same predicament as were the American colonies in 1776 when they foreswore their allegiance to George III. The American Founding Fathers’ decision to dig deep into the meaning of republicanism led them to forge a new constitution unlike anything that had ever gone before. As ‘We, the People of Australia’ contemplate foreswearing allegiance to Queen Elizabeth II of Australia, all we are being offered is rebranding monarchy, complete with the concentration of power in the new monarch, the Prime Minister. If we are indeed in the same position as were the Americans in 1776, then we ought remind ourselves that the framers of the Australian Commonwealth Constitution, having chosen to model theirs upon the constitution of the United States, deliberately left out its four most fundamental elements. These were: popular election of the executive head of government, the separation of the branches of government, the sovereignty of the people, and a bill of rights limiting governmental power.
Australia’s Framing Fathers acted as they did in order to accommodate responsible government and a hereditary head of state in a constitution, which the Americans specifically designed to remove any possibility of a monarchy being restored. Winthrop Hackett, one of the delegates to the aborted 1891 convention, was very much aware of a fundamental flaw in combining federalism with monarchism when he prophesied that:
‘If we are to take even the extreme step of granting responsible government in its present form — that is, the responsible government which, as applied to a federation, is distinctly not proved a success in Canada, and which, as applied in the United Kingdom, has distinctly proved a failure, [that is, with respect to Ireland] and which has forced a large part of that kingdom into a cry, irresistible as I think it will be found, for something nearly approaching separation, either responsible government will kill federation, or federation in the form in which we shall, I hope, be prepared to accept it, will kill responsible government’. (emphasis added)
Given a successful ‘Yes’ vote on 6 November 1999, the people of Australia will come to rue that day as a day of infamy which changed their status from loyal subjects of the Queen into subservient subjects of an unlimited government headed by a powerless nonentity as head of state. Therefore, any discussion about the future of sovereignty in Australia, whether of the Queen, Parliament, or the People, must begin with the Crown whence all political legitimacy originates.
If the Queen Elizabeth II of Australia is no longer to be our sovereign, then it must follow that only ‘We, the People of Australia’ can take her place. Yet, this is opposed by the anti-democratic Westminsterite minimalists and their power elite supporters who imperiously demand that the last vestiges of the sovereignty of the Crown be handed over, without reservation, to a new Leviathan – the Commonwealth Parliament of Australia. To this end, the Australian Republican Movement and its anti-democratic and power elite supporters have done their best to conceal the fact that it is manipulating nationalist sentiment to preserve and protect Australia’s Westminster system of government and, in particular, the power and privileges of executive government.
However, as Professor Alan Atkinson pointed out in his stimulating book, The Muddle Headed Republic (1993), the minimalist republicans, by focusing solely on the question of the replacement of the Queen as head of state, have deliberately chosen to avoid any discussion of the Crown, and its role in the governing of Australia and its constituent states. We are being asked to forget that from the very day of the landing of the First Fleet in January 1788, the Crown in Australia has acted as omnipotent ‘being’ from whom even the present Queen herself draws her sovereignty. Because the minimalists are manifestly determined to transfer from the Crown to the Parliament all the Crown’s prerogatives, possessions, and responsibilities, without admitting that the underlying moral imperatives of Crown sovereignty are the ‘hidden secret’ of government in Australia, they reveal themselves as more anti-monarchist than pro-republican. They are behaving like an art-dealer thief who knows more about the value of stolen goods than does the owner.
Throughout Australian history, the Crown has acted as a moderating force, legitimising and sustaining Australia’s body politic above and beyond the tumult of politics. Who wears the Crown is, therefore, of far less importance to Australia than the fact that it is the cornerstone of government in Australia, from which all political authority flows.
Some Australian commentators, such as Al Grassby in his book The Australian Republic (1993), hold such strong anti-royalist opinions that they have mistaken the symbol, the Queen, for the reality which is that the Crown, in all its guises, has been one of Australia’s most important cultural defining forces. This is in almost complete contrast to Britain where the Queen and the royal family act as major cultural-defining elements, with the Crown little more than a symbol.
In Australia the Crown has always implied a reciprocity based upon a mutuality of obligations, duties and responsibilities between a benign monarch-in-parliament and a loyal people. The Crown is so deeply embedded in Australian culture that, acting like Jean-Jacques Rousseau’s Law-giver, it is the hidden force sustaining ‘peace, order and good government’. Or, as Professor Atkinson put it, ‘The Law-giver’ (the Crown, the State, the ‘extraordinary figure in the State’) ‘is a personage too easily overlooked in Australian history and, it may be, too easily abolished’.
The Crown’s powers are immense. Through State governors and Commonwealth Governors-General it controls the coming and going of Australia’s parliaments, the calling of elections, the appointment of executive government and the authorisation of expenditure and the passage of bills. They also include inquiries into the activities of government; as for example, through royal commission inquiries into corruption in Queensland; the business activities of government in Western Australia; and State government involvement in banking and finance in Victoria and South Australia. As a consequence, royal commissions have proved to be highly successful in sustaining and nurturing the observance of the moral imperatives of government. This has especially true with respect to exposing corrupt and improper practices by State governments. The power of the Crown as a moral force, checking and balancing the otherwise unlimited powers of Australia’s parliaments is abundantly obvious, not only in the dispensation of justice, but in a wide range of activities in which the Crown is regarded as existing independent of the government. It is not surprising, therefore, that the proposed Constitution Alteration Act 1999 which will govern the changes to the constitution if the referendum is passed, sets out deliberately to frustrate the possibility of a president making independent use of the reserve powers.
As much as it might appear to be no more than a servant of executive government, the Australian public service was founded on the principal that civil servants were expected to give the monarch independent advice on matters of state. Queen Elizabeth I of England put this well as long ago as 1588 when she reminded Sir William Cecil on his appointment as her Secretary of State:
‘This judgement I have of you that you will not be corrupted by any manner of gift and you will be faithful to the State, and that without respect of my private will, you will give me the counsel you think best’.
Ferdinand Mount — from whose book, The British Constitution Now (1992) this quotation was taken — has pointed out that in the same tradition the British civil service, operating under common law obligations with regard to corruption, draws special rigour from powers it exercises in the name of the Crown.
Committed judges, public servants and the military are not alone in believing that the Crown demands a high sense of duty. As any state governor can attest, many people still believe that the Queen and her Australian governors are essentially Law-givers, righting wrongs and rooting out corruption. Although in practice there is little either the Queen or her governors can do (other than write to tell the unfortunate petitioners that there is nothing that can be done), the mere existence of such a widespread belief (false though it may be) is a reminder that the Crown is seen by ordinary men and women as a fount of justice with powers of redress.
Public service is, or should be, an enterprise in which the demands it places upon those who serve the people either in government, or in the armed forces, or in the courts of law, or, most importantly, in any elected capacity whether in local, State or Federal government are essentially moral and require more than just honesty and dedication to duty. Public service demands of all those involved, service beyond self, and altruism beyond personal gain.
Australia has always been governed according to the principles of royal virtue and belief in the idea of service and allegiance to the Crown. This idea once prevailed in the American colonies prior to 1776. However, their decision to break away from England in 1776 was much affected by their belief that George III, having acted less virtuously than his royal station demanded, had forfeited his right to govern. The colonists sought to replace the concept of royal virtue (the virtue of one guiding the many) by reviving, in a new and revolutionary way, the ancient classical idea of civic virtue as the many guiding the one; and of duty as the individual nurturing the interests of the community. This placed sovereignty and the sources and inspirations of civic virtue at the very forefront of their republican debate.
To do this, the newly independent American colonists, anxious not to repeat the mistakes of the English republic under Cromwell, were forced to inquire into the very nature of republicanism as an alternative system of government based upon the people as the only true and authentic source of political power. The fact most of the leading thinkers and activists in the long lead-up to the outbreak of the American Revolution in 1776, as well as those who were later to devise the Constitution of the United States of America, were men reared in the traditions of eighteenth century English classical education made them extremely well-qualified for the task of bringing forth a new nation. Their knowledge about England, its history, system of government, political philosophies, and debates; especially those engendered by the Civil War and the Glorious Revolution of 1688, and writers such as Hobbes and Locke were to leave an indelible mark on American republicanism. The American constitutional fathers began their task with a ready-made context or a framework within which to conduct their debates. These involved practically every aspect of government; including even the purpose of government and its relation to civil society.
What happened in Philadelphia in 1787 during the course of the constitutional debates and what followed, stands in marked contrast to the course of Australian republicanism (if as such it can be described) which has been marked from the very beginning by the shallowness of its argument and an almost complete ignorance of republicanism as a system of government. It is not surprising that those delegated to attend the February 1998 Australian Constitutional Convention came up with such a caricature of a republic in their so-called ‘bi-partisan model’.
For the American colonists, the best-known written sources of republican ideals were the histories of the republics of classical Greece and Rome where the observance of civic virtue and the fulfilment the obligations of citizenship were regarded as essential for the well-being of the community. Influenced by the philosophical and psychological ideas of John Locke, and knowing they wanted a system suitable for a continent, the American constitution makers sought and found a new definition of civic virtue which, although based upon personal sovereignty and self-interest, would, nevertheless, be capable of holding together thirteen markedly different states on the eastern edge of an as-yet-unclaimed continent. The result was to shift the emphasis on virtue from the needs of the community (top down) to those of the individual (bottom up). This, according to Thomas Pangle in The Spirit of Modern Republicanism (1988), was an affront to those who believed that public good could only come from altruism and the subordination of self-interest to what is considered to be the greater public good.
The change also represented a shift away from the old virtues that sustained status quo and continuity, to a set of new virtues that encouraged acquisition, investment, expansion, development and change. These were precisely the forces which Adam Smith used as the foundation for his epoch-making Wealth of Nations, first published in 1776, the year of the signing of the Declaration of Independence. These two publications, each emphasising the necessity of virtue, when taken together with the early sixteenth century works of that great Christian reformist, Martin Luther, laid the foundations of modern man’s claim to religious, political and economic freedom. Henceforth there were to be no intermediaries.
Jefferson’s Declaration of Independence broke the mould by contributing the idea that, along with their inalienable and sovereign rights, the people, in their newfound freedom, had inherited King George III’s responsibilities and obligations. This revolutionary shift in the fundamentals of political philosophy was accompanied by a parallel shift in the paradigms of political economy. Led by Adam Smith, the new movement was able to show, from a wealth of evidence, that the pursuit of self-interest, far from being selfish (‘private vices’) as previously believed, did in fact produce a public good (‘public virtues’). There is in this a similarity between Adam Smith’s demolition of eighteenth century ‘beggar thy neighbour’ mercantilism (and its corollary, government-controlled patronage, protection and trade) and the collapse of neo-mercantilism operating under the banner of communism. In both cases his views opened the way to a new economic ethos from which economic man emerged to take on the responsibilities of political man. Henceforth, people have to consider themselves as autonomous moral beings and members of a community of communities acting according to the rule of law.
The American Revolution carried into constitutional practice radical theories about the nature of government based upon the sovereignty of a virtuous people. As a consequence, the constitution of the United States of America became, as was intended, a culture-defining instrument based upon the means, rather than on the ends, of good government. Consequently, with each new era, America is compelled to re-examine the meaning of a constitution aimed at guiding a ‘remote futurity’. This is a task in which the United States Supreme Court (and not without dispute) has increasingly taken a leading part.
The idea of virtue is implicit in the current Preamble to the Australian Constitution where it proclaims that the Constitution was created ‘humbly relying on the blessings of Almighty God’. These words were inserted at the 1897 Constitutional Convention at the request of the people and with the support of most colonial parliamentary representatives because, as convention delegate, lawyer P.M. Glynn, said:
‘It is of this that Cicero speaks when he writes of that great elemental law at the back of all human ordinance, that eternal principle which governs the entire universe, wisely commanding what is right and prohibiting what is wrong, and which he calls the mind of God. Right through the ages we find this universal sense of Divine inspiration—this feeling that a wisdom beyond that of man shapes the destiny of states; that the institutions of man are but imperfect instruments of a Divine and beneficent energy, helping their higher aims. … It was from a consciousness of the moral anarchy of the world’s unguided course that all races of man saw in their various gradations of light the vision of an eternal Justice behind the veil of things whose intimations kept down the rebellious hearts of earth’s children.’
Herein lies a glimmer of the idea that virtue arises out of some higher and independent source, or, as the preamble has it, ‘the blessings of Almighty God’. In it we find echoes of Jefferson’s ‘Nature’s God’, his ‘Creator’, or even his ‘Providence’.
The publication of Adam Smith’s Inquiry into the Nature and Causes of Wealth of Nations was part of a process of the intellectual uncoupling of the philosophies of the past from the needs of a new age. Although Adam Smith stood astride the end of one era and the beginnings of another, he nevertheless saw the necessity for the continued observance of the classical virtues of prudence, justice and benevolence in this new age. Adam Smith was, therefore, no advocate of laissez faire. He believed that the responsibility for a country’s prosperity rested squarely upon the individual whose passions, he believed, were self-regulated by reason and regard for others; or, as Adam Smith put it, ‘[w]e endeavour to examine our own conduct as we imagine any other fair and impartial spectator would examine it’. Adam Smith’s moral views about the necessity for virtue provided a philosophical basis for his concept of enlightened self-interest. Thus, contrary to popular opinion, Adam Smith’s advocacy of competition was tempered by the virtues of moderation or self-restraint on the one hand, and of love and duty to society (country and the government which represents it) on the other.
Bringing commerce and industry into the political sphere gave a new and potent meaning to liberty which spilled over to embrace the demands of a virtuous commerce viewed as ‘the great bond of union among citizens’. In this and other ways, ideals of individualism and of individual rights were either discovered, or re-invented by the Anglo-Americans. They were also inspired by their re-interpretation of Magna Carta, the traditions of English common-law, and the principles behind the English Bill of Rights of 1689. The origins of the Anglo-American concepts of liberty are underpinned by the principles of common law and the fundamental principles of constitutional law laid down by Magna Carta that the king’s powers are limited and that he governs only with the consent of the people.
Steeped as they were in religion and the ideals of enlightened self-interest, eighteenth-century Anglo-Americans were open to the idea of a virtuous people in a virtuous republic. Although in today’s atmosphere of ‘guiltless’ individualism and non-judgementalism, the ideals of civic virtue have lost much of their ability to moderate and guide human (particularly male) behaviour, the re-emergence of republican ideals might not be as unlikely as it might at first sight appear. Speculation among concerned critics of society, prompted by worldwide changes in moral observances – the unintended consequences of what seemed during the 1960s and 1970s to be highly desirable relaxations of community standards – have already begun to direct society toward a change in attitude.
Among the severest critics is historian Gertrude Himmelfarb who, in The Demoralisation of Society: from Victorian Virtues to Modern Values (1996), points out that individualism was redefined during the 1960s away from its earlier emphasis upon self-discipline and self-control as ‘the source of self-respect and self-betterment; and self-respect as the precondition for the respect and approbation of others’ to an entirely introspective notion that self that does not ‘have to prove itself by reference to any values, purposes, or persons outside of self’. This, she believes, gave rise to introspective individualism, paternalistic ‘moral correctness’ and a ‘curious combination of prudery and promiscuity’.
The relevance of this to our thinking about republicanism shorn of its last remnants of those royal values and virtues that have sustained Australia so successfully in the past, lies in the extent to which they can be carried over and developed under a republican system of government. Unfortunately, by their total lack of any concern, the Australian Republican Movement and its supporters appear to assume that their republic would automatically inherit the moral directives of the Crown. They do this because, as part of their campaign of deception, they want us to assume nothing will change.
The truth is, however, that forswearing of all allegiances, duties and obligations to the Queen of Australia and the Crown is, as the American Declaration of Independence made plain, of immense constitutional consequence. For, as Thomas Hobbes pointed out: ‘If a monarch shall relinquish the sovereignty for himself and his heirs, his subjects return to the absolute liberty of nature’ (italics added).
However, the possibility that the people of Australia might be, even for an instant, returned to ‘the absolute liberty of nature’ — and therefore, for a brief moment sovereigns in their own land, is anathema to minimalist republicans whose real objective is the maintenance of the absolute and unchallengeable sovereignty of parliament and not the passing on of the sovereignty of the Queen to the people as her heirs and successors. It is no wonder, therefore, that the Australian Republican Movement and its misguided supporters regard those who champion a popularly elected president as their deadly enemy.
Citizenship is essentially a republican ideal. In a Greek city-state, where the idea originated, it involved a commitment to obey to its laws, and defend it against all enemies. True citizenship was also about adhering to the spirit of the people and its customs and unwritten laws. One has only to read what Pericles and Aristotle had to say about democracy to realise that they were talking about a way of life and not a vote counting procedure for political party demagogues. True citizenship, as the Greeks realised, is about shared values which, by incorporating past and present within the same framework, enable men and women of diverse cultural backgrounds to identify themselves as owing common allegiance to and observing the same values. And this is somewhat different from learning the words to a new national anthem.
In this regard we should remind ourselves of Australia’s traditional values. These have, as their roots, such traditional virtues such as ‘discipline’, ‘duty’, ‘courage’, ‘honour’, ‘justice’, ‘fortitude’, ‘temperance’, ‘wisdom’, and ‘care for others’ — virtues epitomised by the anzac tradition whose origins may be traced to the influence of allegiance to the Crown. And, one might add, sentiments that the Prime Minister, John Howard, attempted to invoke when he referred to the ‘mateship’ in his much criticised new constitutional preamble.
The direct election of Australia’s head of state would begin as a process by which all the prerogatives of Crown and the sovereignty of the Queen are transferred to the people. And, as Australia’s new sovereigns, the people would then be ‘enthroned’ as the Queen’s sole and rightful heirs in perpetual succession. The enthronement of the people must be more than a symbolic act. It must involve at some stage a solemn ceremony at which oaths of office and of service are made. The enthronement of each succeeding generation would in turn endow them with all the prerogative rights, duties and responsibilities of sovereign citizens.
Aliens, on naturalisation as citizens, are required to take a solemn oath of allegiance. However, because it is assumed that being born in Australia is sufficient proof of loyalty, no such oath is required of native born Australians. This occurs because under a monarchy the people being subject of the Queen, are expected, as sons and daughters of subjects, to be as loyal and obedient as their parents. But this situation changes under a republic. In a republic the people are expected to swear allegiance not to a person, as in a monarchy, but either to the intangibles of the ‘nation’ — for example, to Australia — or to something more specific such as, for example, swearing to uphold and defend the Australian constitution.
The absence of a comparable oath-swearing on the part of native-born Australians, except when taking public office or undertaking military service, means that there are no rites of passage for Australians as they become eligible to vote. And nor are they required to make a public or formal acceptance of the obligations and responsibilities of citizenship. If we are to be consistent, there should be no difference between native-born and naturalised citizens. All who wish to call themselves Australian citizens should be required to swear an oath of allegiance, and agree to accept the duties, obligations and responsibilities of citizenship.
The idea that all citizens (native born and newcomer alike) should swear, or in some way agree, to uphold and defend the principles by which a community stands may seem extreme. But it would add immeasurably to the idea that becoming a citizen enjoying all the rights of citizenship was a commitment to wider ideals of the obligations and responsibilities of citizenship in a republic.
It has been a central plank of the Australian Republican Movement’s minimalist case that replacing the Queen with an appointed president would leave our system of government exactly as it is now. This has allowed the movement to pursue an unrelenting and uncompromising campaign of mendacity and deceit which denies that republicanism is a separate and distinct system of government. Phrases such as ‘resident president’, ‘a republic in my lifetime’, ‘we must have a republic’, ‘an elected president is bound to conflict with the prime minister’ and ‘Australia is mature enough to cut its ties with Britain’ demonstrate the shallowness of its argument and its determination to hide the fact that removing the Queen is a change of profound importance as to change the entire character of the constitution. Constitutions are intended to empower entire systems of government. They are not lightly to be changed. It is the burden of this paper to have argued that the removal of the Queen of Australia, along with the Crown she represents, is of such a fundamental order of change that no one can predict with any certainty what will be its consequences.
But since we do know that the Crown in various and often unexpected ways has deeply affected Australia by helping to define Australia as a nation, we should be aware that we are about to pull out the nation’s foundation stone. Should the people of Australia foolishly agree to the ARM’s model, Australia will doubtless carry on, at least for a time, as though nothing had changed. However, as one would expect any changes to our constitution to last at least for one hundred years, we must make every effort to ensure that in moments of crisis our system of government does not fail us as a nation. Over the last one hundred years there have been two-third or more Commonwealth parliamentary majorities on at least seven occasions. I am certain that governments based upon such huge majorities might not have been as restrained as they were had not the Crown been in existence. There must be, as Alan Atkinson calls it, a Law-Giver, someone outside of the political system who draws his or her legitimacy from another source. If it is not to be the Queen of Australia and her heirs and successors, it can only be the people who, having elected a government to govern, must perforce, as the new Law-Giver, stand aside from what it has created. That is, if Australia continues with its current system of responsible government