I was not surprised at all to learn that the next Chief Justice of Australia, Federal Court judge, the Hon Robert Shenton French, is a “republican.”
So were Sir Henry Parkes and Cardinal Moran. His Eminence thought colonial Australia in the years up to Federation represented the most perfect form of government in the world.
The former prime minister, John Howard, and the High Court Justice the Hon. Michael Kirby, describe the existing constitutional system as a “Crowned republic.”
So are they then republicans?
…judges speaking out…
It is unusual to find a senior judge has come out in a public lecture to say that the Australian Crown should be excised from its central role in our Constitutional system.
It is unlikely, but possible, that this issue could come before the High Court at some future time. If so, there will probably be a motion that the Chief Justice recuse himself and not hear the matter.
Other sitting judges refuse to speak on such matters, following the old tradition that judges were to be seen only in proper places and, out of court, never to be heard.
You do hear grumbles occasionally that if only it were still so.
Mr. Justice Meagher has written of one eminent Australian judge who is always ready to speak on all manner of subjects.
Apparently he once addressed a learned – and no doubt very surprised – conference in Africa on the subject of “breast feeding”.
Mr. Justice Meagher reveals that this was all a misunderstanding.
The invitation to speak was made by telephone, perhaps on a bad line, from Africa.
The proposed subject was however not “breast feeding”.
It was “press freedom”.
…the judge’s dream….or is it a nightmare?
The title Justice French chose when he was invited to give the Sir Ronald Wison lecture in Perth on 8 May, 2008, indicates what is on his mind : “Dreams of a New Republic”.
While it is interesting to know what their honours do in bed, it would not be out of place to caution that dreams can too readily turn into nightmares.
As do so many republics.
“But beyond the dreams,” His Honour muses,” we need a clear vision of the values which we want to inform a Republican Constitution and the essential elements to give effect to them.”
It is clear that he adopts a position not uncommon in the lofty intellectual circles in which he no doubt moves.
We must have, he says, a debate about basic values, and forge a consensus “to drive the change which is inevitable.”
But with respect, Your Honour, why do you have to “drive” something which is inevitable?
It is inevitable that we all will die. I don’t think most people – outside of the euthanasia society – feel any need to drive themselves to their mortal end.
Indeed, most of us have our foot rather firmly on the brake.
Nor do I detect any need to drive the politicians to tax us, taxes being an inevitable burden of life. The problem is how to restrain them from increasing the current rate of already excessive taxation.
…understand the constitution…
Now the learned judge is right when he says republicans need to understand what they are talking about.
The debate has been replete with examples of republicans not understanding essential matters before they rush to make some or other pronouncement.
“It is necessary,” His Honour opines,”to have an understanding of what came before the Constitution, how it was made, its important features and the role of the Crown under it….”
“It is necessary to recognise that it is a federal Constitution and that each of the States has its own Constitution. In each of them the Crown is central to the exercise of legislative and executive power.
“It is also important to understand that Australia’s independent nationhood did not spring into existence upon Federation in 1901.
“It has evolved. The most recent stage in that almost complete evolution occurred with the enactment of the Australia Acts in 1986.”
“It will not be complete until we have a Republican Constitution authorised and owned by the Australian people of the 21st century.”
It is good to see Justice French stresses the importance of understanding our constitutional system and the context in which it emerged, and the centrality of the Australian Crown.
But there is no logical justification for that last sentence. Nothing he says previously supports that. It is a non sequitur.
It is wrong to say our independence will not be complete until we are a republic.
This assumes we are not independent while the plain fact is that we are independent and manifestly so.
Just look at the facts. Surely, no countries could be more independent than Canada, New Zealand an Australia?
The proof is in our foreign policies and our alliances. These are not the same, indeed there was a time when New Zealand seemed close to neutrality.
Saying becoming a republic will make us completely independent falls into that range of desperate and often silly arguments which were released every few weeks by some or other celebrity republican in the nineties.
This included such fatuous arguments that a republic would reduce unemployment, increase trade, increase immigration, unleash our artists, and stop Australian expatriates being confused with the English etc etc.
Your Honour, with the utmost respect, you are saying black is white.
…those tired old arguments….
Justice French predictably pays the usual compliment well brought up republicans pay to our Queen.
“There can be no personal reflection upon the way in which Her Majesty Queen Elizabeth has discharged the function of Queen of Great Britain and Queen of Australia in her long reign. She has served the Australian people well.”
But then of course comes the sting.
“ That said, it is unacceptable in contemporary Australia that the legal head of the Australian State, under present constitutional arrangements, can never be chosen by the people or their representatives, cannot be other than a member of the Anglican Church, can never be other than British, and can never be an indigenous person. Our nationhood is not complete until the change to a Republic is made.”
Well the High Court itself has ruled that the Governor-General is the Constitutional Head of the Commonwealth.
There is a convention that he or she should be Australian, and in any event the recommendation is made by the Prime Minister to the Sovereign as Queen of Australia.
That is the constitutional head is chosen by the peoples’ representatives. So why do we need to turn the world upside down, Your Honour, to do precisely what we are doing now?
And as for those tired old arguments about the law relating to the succession, it is open at any time for the Australian government to propose changes to the law relation to the succession.
Perhaps Your Honour has already made proposals to the government along these lines? If so, we would be interested to see them.
The moral is clear. If you don’t like the Act of Settlement, do something about it. Don’t use it as a spurious reason to throw the baby out with the bath water.
Incidentally, no one gives credit to the fact that women could succeed in our system long before it was allowed in most countries.
And in relation to the indigenous people and the succession, we may reasonably expect that a young person of Maori descent will soon join the line of succession to our Throne.
This is because Lady Davina Lewis, née Windsor, who is in the line, married a New Zealander of Maori descent in 2004, Gary Christie Lewis.
…grafting a republic onto a monarchical system…
Most of Justice French’s paper (undertaken with the assistance of the Federal Court’s research directorate) is about the ways in which Australia could become a republic.
There is nothing about Australia becoming more democratic, as some wish, through say, Citizen Intiated Referendums, or, dare we say it, the election of judges.
The scheme he proposes is tortuous, involving a new preamble. Now that was the subject of the second referendum in 1999, which was overwhelmingly rejected.
ACM took no position on this, but I must say I was delighted it went down.
I cannot see the point of putting in a new preamble to an existing document. If anyone suggested a new preamble to Magna Carta, or the Bill of Rights, or the US Constitution, I am sure he or she would not get far.
One day republicans will accept that you cannot sensibly graft a presidential or parliamentary republic on to an essentially monarchical constitutional system.
It is like replacing the engine of a Rolls Royce car with one, say, from a Trabant, the peoples’ car conceived in a republic – the German Democratic Republic.
That most eminent authority of the Australian constitution, Professor PH Lane gave sensible advice to republicans many decades ago: you really have to start again with a new constitution.
Leave this one alone.
Whether a sitting Chief Justice ought to be involved with that is of course another question.