November 21

The Republic And The Courts

Mr Beazley’s volte- face on the Latham Republic was surprising, and not well received among thinking republicans.

Even Senator Stott Despoja was concerned that Mr Beazley had indicated a preference for the Latham Republic or for any other model.

The Senator is maintaining the fiction that the ARM/Latham process- the cascading series of plebiscites and referenda-is not designed to produce the Latham model.

But after her republican colleague Senator Marise Payne received a lecture from Professor Greg Craven, Senator Payne decided she had to let the cat out of the bag on this by publicly dissassociating herself from the ARM/Latham process.

This Latham process is designed to lead to the Latham republic(perhaps now the Latham Beazley republic), with a directly elected president. The ARM naively thinks the electorate will find more attractive than their last model, the politicians’ republic.

The proposition that the head of state should be elective may seem initially attractive to some. But it won’t work, and when it is properly debated -and ACM will ensure that happens- it won’t sell.

The facts are these. Our Commonwealth is based on the concept of limited government, and that all power should be subject to checks and balances.

In the Westminster system, the executive and legislative powers are not separated-the executive is responsible to parliament. Hence, the Crown is vested not only with the reserve powers, but also the role of something akin to an auditor of proper process.

Were the Crown to be replaced by yet another politician, the considerable viceregal powers would no longer be used for purposes above politics.

They would become powerful weapons in the political arena, leading to gridlock in the government of the Commonwealth.

Those in the legal profession who are flirting with republicanism should understand that making the office of head of state elective invites the electorate to consider whether that other check and balance on power, the judiciary, should not also be elected

Or alternatively, that there should be some legislative or popular approval of judicial appointments.

This may come in part from dissatisfaction with the criminal justice system which is sometimes seen as being more concerned with the accused, rather than the victim of crime.

Last year, The Australian Law Journal reported the findings of a survey showing twice as many respondents favoured the election of judges over the present system.
The Chief Justice, Mr Justice Murray Gleeson, who unlike his two predecessors has never indicated the slightest attachment to republicanism, says this would be a “constitutional monstrosity”( Australian Financial Review, 8 October, 2004.)

More recently, Dr Helen Irving, a strong proponent of an Australian republic, has unfavourably compared the US constitutional requirement for Senate confirmation of Supreme Court appointments, with our smooth, quiet and effective practice.(Judging The Judges, Sydney Morning Herald 24 September, 2005) She wrote:
“The contrast could not be starker. On Tuesday, the Attorney-General, Philip Ruddock, announced the Government’s choice of Susan Crennan, Federal Court judge, to replace Justice Michael McHugh in the High Court. For the public, it was the start and end of the process.

In the United States, on July 19, President George Bush nominated John Roberts to replace retiring Supreme Court justice Sandra Day O’Connor. Next week a vote of the US Senate will complete the process. It will have taken more than two months for Americans to know what Australians learnt from a media release. Yet, in other respects, the two courts are alike. Australia’s constitution says the governor-general, on government advice, appoints justices of the High Court. The US constitution requires "advice and consent" of the Senate for the president’s Supreme Court nominations. Senate confirmation hearings are notorious, spectacular events – an interrogation of the nominee for days on end, with Republicans and Democrats taking turns. Hearings are broadcast live, followed by endless media analysis. And this is just the tip of the iceberg.”

Perhaps Dr Irving should also reflect on our smooth, quiet and effective practice in the filling of vice-regal positions in Australia, and also in relation to the royal succession itself.

Perhaps republicans will now think carefully before they so casually and effortlessly design ways and means to” modernise" and to “make more relevant” our tried and tested constitutional system.

Until next time,
David Flint


ARM, Beazley, Kim Beazley, Marise Payne, Mark Latham

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