August 9

Wall-to-wall republican governments?

Kevin Rudd may well have inadvertently made the prospect of a one party nation an issue in the coming election.What is disturbing is not the prospect of wall-to-wall Labor governments.  Rather, it is the prospect of wall-to-wall governments firmly committed to some sort of republic. Of the major parties only Labor is so committed. Although founded by that great constitutional monarchist, Sir Robert Gordon Menzies, the Liberals have somehow managed to make this a conscience issue, while the Nationals remain solidly monarchist. The consequence is that even with a republican prime minister, the Coalition will be divided and not vote as a bloc. On the other hand, it is doubtful that the monarchists in the Labor Party would be allowed a free vote. Rather, it is likely that they would be compelled to follow the party line.

In this context, Kevin Rudd’s recent intervention in support of a republic was as unexpected as it was unwise. He clearly has not done his homework on the question. How else can would this conservative Labor politician observe that he is “relatively relaxed“ about the prospect of a republic in which the president is chosen by the electorate? No other conservative politician of any standing is. This statement was reckless.

Equally unprofessional is the Labor Party’s continued outsourcing of the detail of this issue to the declining republican movement. This is even more curious when it is remembered the movement is headed by a Liberal candidate in the coming election.More importantly, by his introduction of the republican issue into the electoral debate Mr. Rudd has raised to  the foreground the fact that since 1986, the powers of the state and federal parliaments acting together seem to be absolute and without limit. It is not so much that they can they raise the GST – the  Federal Parliament could do this alone if it so wished, just as it could change the Flag without a popular vote. Mr. Keating and Mr. Beasley planned to do precisely this before they lost office, and Mr Howard’s subsequent amendment to the Flag Act could be repealed by a determined government with the numbers and the requisite discipline.  

Our seven parliaments acting together could, on the very best legal advice available, not only bring in any sort of  republic without a referendum, it could also abolish the Senate, turn the states into regions, extend the terms of the  politicians to five or seven years or more, subvert the judiciary and gag the media . Only a determined High Court could stop this, and there is no guarantee of that. Now no  one is saying they are going to all or even any of this. But by raising the prospect of change to some sort of republic, Mr Rudd has handed control of the introduction of this issue to his opponents.Once it is on the agenda, the electorate may begin to wonder whether any party should have this power. They may ask whether the temptation to do something will be too strong? Would the parliaments ignore the peoples’ will as, say, the Queensland Parliament once did over the abolition of the upper house?.

 ON LINE opinion, the prominent e-journal od social and  political debate asked me to comment on Mr. Rudd’s intervention. This was posted on 9 August,2007, under the headline “ Mr. Rudd puts his foot in it.” This follows: 


   Kevin Rudd may come to regret his announcement of another republic referendum. Never a “passionate” republican, he is surprisingly unconcerned about the risks in the direct-elect model. He is ready to fling vast sums at what could turn out to be a very expensive, long drawn out, divisive and ultimately futile exercise. Far worse, he has handed his opponents more ammunition to warn about “wall-to-wall Labor”: will Labor try to introduce a republic, and more, through the back door? The result is he may have unwittingly made this, and his judgment, bigger election issues than they would have been. He is clearly worried about the perception that he is a policy mirror image of John Howard. It’s not the Greens; they’d rather drink hemlock than preference the Coalition above Labor, but his own left, who must be straining at the leash over a succession of policy surrenders to John Howard.  


Perhaps he decided to do what seemed to be the easiest thing: take a leaf out of Peter Costello’s book. The Treasurer tries to demonstrate a degree of brand differentiation from John Howard in the few negotiated exceptions to the Westminster requirement for collective responsibility: abortion; RU 486; his famous Sunday stroll for reconciliation – hardly a Compostela de Santiago; and, of course, there’s a republic. Admitting that a republic was not a "first order concern" for working families, Rudd over optimistically predicted it would be in the future. Malcolm Turnbull, also from a multi millionaire family, is better informed on the thinking of working families. Conceding months before the 1999 vote he had “Buckley’s chance of winning,” he gave the reason, “Nobody is interested”.


 Mr Rudd probably believed his republican announcement would not only satisfy the left, but would also excite the media. (As to the left, it could keep the peace over, say, his renunciation of the Latham Tasmanian forestry policy, or his refusal to criticise the government over the cancellation of Dr Haneef’s visa.) He must have been disappointed that it was not greeted with the excitement which such statements once attracted in the media. The story did however appear in Europe – perhaps they remembered Paul Keating regaling them about a republic and a new flag, while offering to redesign Berlin. 


Unwisely, Rudd resorted to the head of state argument, which failed in 1999. Indeed the leading republican constitutional lawyer, Professor George Winterton, has slammed it as “arid” and “irrelevant”. Monarchists have always insisted that this is a diplomatic term any way and that is how the Govenor-General is received overseas. But now they have found a silver bullet in an authoritative High Court judgment which uses the term “constitutional head of state” and describes the G-G as the “constitutional head of the Commonwealth”. And presiding over the court was none other than the brilliant lawyer who produced the first draft of the Constitution, Sir Samuel Griffith. Each of the other judges were also leading founding fathers. The argument that the G-G is not head of state has been dealt a mortal blow. 



As to the model, Rudd doesn’t seem to appreciate that the direct elect model is anathema to most conservative republicans, including Bob Carr, Professor Greg Craven and Malcolm Turnbull. The problem is that the G-G has vast powers, only tempered by the conventions which surround the Crown. Take the Crown away, and you have an office in which Charles de Gaulle would have been comfortable. Paul Keating and Gareth Evans laboured for long to codify the reserve powers, eventually throwing up their arms and giving it away as impossible. Yet Rudd says he is “relaxed” about direct election. Relaxed about making the country ungovernable?  On this fundamental issue, he has clearly not done his homework. 


This may be because Labor has inexplicably outsourced its republican policy to the Australian Republican Movement (ARM), a body which was described as “near comatose” by David Marr. This is even more extraordinary given that the ARM leader, Ted O’Brien, is an endorsed Liberal candidate. The result is that Labor is locked into a convoluted, expensive and distracting process. This is actually designed to bring the people to the hustings three times, where they are likely to tell the government what they think of them. In his wisdom, Mark Latham came up with a suicidal plan to have one vote on this each year of his first term. 


The final straw is that Rudd has given Labor’s opponents another weapon to argue that wall-to-wall Labor would be too risky. Hitherto the only danger seemed to be that they could increase the GST, just as Keating did with sales tax immediately after winning the 1993 election when he promised no GST. It will now be argued that Labor will be able to change our constitutional system any way it wants through the back door. This all comes from an obscure section in the Australia Acts, 1986. Under this our seven parliaments acting collectively can amend the Statute of Westminster and the Australia Acts. So can they amend the Constitution without a referendum?


Unfortunately for Rudd, the politicians have already shown how they can ignore or circumvent a referendum. They did it once in Queensland in abolishing the Legislative Council. More recently, contemptuously assuming the public would vote “Yes”, legislation was rushed through all parliaments just before the 1999 poll to amend the Australia Acts to make it easier for the states to become republics. 


So can the backdoor be used to achieve other things on the agenda – or not on it – bearing in mind the Platform from the April Conference is still under wraps? So could the Australia Acts be used not only to create a republic, but also abolish the Senate, extend parliamentary terms, abolish the states, and so on? Only the High Court could decide that. But disturbing revelations about political activism in the judiciary, and the ruling in the WorkChoice case that the peoples’ views in referenda are of no use in interpreting the Constitution may have reduced confidence in the Court.


Consequently the electorate may be increasingly susceptible to warnings about the dangers of becoming a one-party state. If so, Mr Rudd will only have himself to blame. Until he put it on the agenda, republicanism was on “life support”, as Lenore Taylor put it. It will come back to haunt him. 


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