It was pleasing to read that Australia’s Prime Minister had elevated, as a priority, constitutional recognition of Australia’s First People ahead of a second attempt at a referendum to decide whether the country should become a republic.
Naturally, amongst many republicans in Australia, this did not stop a splurge of advocacy for just such a referendum. This should not surprise: the death of a much-loved (or, at least, admired) monarch, the ascension of her heir with a somewhat tarnished PR profile, and now revelations from a now (self)-exiled royal have offered Australian republicans much fuel in their quest to rid the country of a British monarch as its head of state.
Polls (many of which are commissioned and published by the republican movement) suggest that a majority (although only barely) of Australians no longer wish the British monarch to be the country’s head of state. Despite this, the push for Australia to become a republic fails to excite the masses. This might have a lot to do with how the republican movement frames the debate about ‘having an Australian as our head of state’.
The line that is run by the republican side is that it is not appropriate for a modern democracy such as Australia that the person who, under our constitution, has ultimate power in our legal system and government, is a foreigner whose qualification to hold that position is determined by heredity, and who is not appointed by a vote of the people, or by a institution whose members are themselves appointed by a vote of the people. On an initial reading, that view seems quite compelling, but, apart from the observation that the monarch is a foreigner, it is not only flawed from a logical and substantive perspective, it actually misses the point. Let us break it down, shall we?
The monarch does not actually exercise much power
The assertion that a foreign monarch holds the ultimate legal power under Australia’s constitution is actually true, but it is not practically true. It is actually true that the British monarch appoints a representative (the Governor-General) to exercise the monarch’s power in Australia, and it is also actually true that that representative is the person that: (a) invites the leader of one or other political party to form government; (b) appoints Ministers to exercise executive power (and revokes such appointments); and (c) gives formal recognition to laws made by Parliament (that is, it gives them legal and binding effect). However, practically, the exercise of each of those three powers comes as a result, not by direction from the foreign monarch, but by Australians.
The invitation to form government comes following an election – by the people of Australia – of their representatives in Parliament. If a given political party succeeds in having enough of its candidates elected such that it is able to succeed in a vote of confidence and secure supply (that is, the appropriation of funds necessary to actually run the government), then the leader of that party in Parliament gets the invite. As for appointing Ministers and assenting to laws, each occurs on the advice of the government. Similarly, the monarch’s representative does not exercise any other executive power other than with the advice of the government.
“But hang on”, you say, “where is all this acting on advice stuff provided for in the constitution?”. Well, it is not. “So, if it isn’t in the constitution, what’s stopping the monarch, or his/her representative, doing their own thing and ignoring the elected government?”. Good question. The answer is something that constitutional lawyers call ‘constitutional convention’. The constitutional conventions are a set of unwritten rules that determine how the monarch and/or his or her representative exercises the Crown’s executive power. Amongst those conventions are that the invitation to form government is given to the leader of the party that is able to hold the confidence of Parliament, and to pass supply bills necessary for government to operate, and that the monarch or his/her representative exercises the Crown’s executive power on the advice of the government of the day.
While these conventions are unwritten, and are not enshrined as ‘L-A-W’ in any legislation or court decision, in Australia, they have (with one notable exception) been the glue that has bound successfully our system of government, and our legal system, together. I can sense your incredulity building: you’re thinking to yourself “how can the written words of a constitution, which is enforced by the highest court in the land, be trumped by some unwritten conventions?”. Well, actually, the conventions do not ‘trump’ the words of the constitution. Rather, it is the case that all of the relevant participants agree to implement the constitution and the powers granted under it in a particular way that is not specified in the constitution.
I can see you are still a bit twitchy about my last explanation, and want to know how that ‘agreement’ holds in the face of a constitutional crisis. Interestingly, the answer to that question does not get much of a run in the legal texts, but it is relatively simple: assured destruction. If the monarch (and/or its representative) starts exercising power independently of the elected government, then it will lose the support of the people rapidly, and the people will by some form of revolution – whether violent or civil – remove the monarchy altogether, which in all likelihood will result in the removal of a whole range of other privileges and benefits of being the monarch. In case there is some doubt about this proposition, one need only look at the United Kingdom itself: the monarch has reigned, but has not ruled, for over 300 years. Australia’s system of government is based upon that of the United Kingdom.
The selective objection to heredity?
Just to be clear, I am no fan of the devolution of power and influence to a person merely because he or she (mostly, he) happens to be a child or close relative of another. I also acknowledge that history shows that, when comes to monarchy (of just about every country that had one), heredity produced successors who were ineffective, incompetent, profligate, corrupt, sociopathic and/or insane.
Therefore, it is understandable why the republicans attach some significance to the fact that constitutional power is ‘passed’ down to a person, who may not be qualified or suitable to hold it. However, if the passing of power and influence via family lines represents some kind of existential threat to the country, why then do we treat with deference the passing of real power and influence along familial lines in the fields of politics and, in particular, business? After all, our politicians and political parties, and major corporations, wield actual power: they make decisions that directly affect our lives, our standards of living and our employment (to name but few). If it is somehow not acceptable for constitutional power (such as it is) to be passed from one monarch to the next, then surely we should be raising hell over the fact that a child of a political stalwart, or a major business owner (anyone heard of a guy called Murdoch?), jumping into Mum’s or Dad’s (usually Dad’s) seat merely because they are Mum’s or Dad’s child?
While we’re at it, if the problem with heredity is that the successors to power are not required to demonstrate merit, then let’s talk about the dirty great big elephant in the room, which is that power and influence still sits predominantly with Caucasian men, at or above a certain age, many of whom have life experience limited to politics and the machine of their particular party, or Daddy’s business empire.
If we are really going to mount an argument for change about the way in which executive power and influence is exercised, that is, ultimately, based on the notion that the decision as to who exercises that power must be merit-based, then we should be devoting our efforts to building a meritocracy, at least in our political system, and enhancing access to other key social resources, such as education. Quibbling about the hereditary passing of what is, in this country, a largely ceremonial role with little actual power, seems somewhat quaint. Further, it is, frankly, naïve to suggest that substituting an Australian for a foreign monarch will in some way transform our government and legal system.
Play the issue not the man
The aspect of the republican push that rankles me the most is that its focus is on a person (the monarch) or the institution (the monarchy), and not on our (Australia’s) system of government, and what changes should be made to that system in the process of transitioning to a republic, should that occur.
I am not opposed to that transition, but it is incumbent on those who advocate that transition to show me (and, by extension that Australian public), first, why that change is necessary – that is, putting aside the issue that our head of state is foreign monarch, what is it about our current constitutional system that is not meeting the needs of the population and the country, and secondly, what the ‘new’ system will look like.
For the purposes of full disclosure, in the 1999 referendum (where the country voted on the question of whether it should transition to a republic) I voted ‘yes’. I am not certain I would do so again if the question were repeated. This is not out of any new-found affection for the monarchy or our current constitutional system. Rather, it is because of the failure of any republican movement to address the two questions I posed immediately above.
Our current system has operated effectively, if not perfectly, through the 120 or so years since Federation. Elections, and changes of government, have proceeded peacefully, the underlying integrity of three arms of our constitutional system: the legislature, the executive and judiciary remain largely intact, the separation of powers has largely held, and we have a High Court that is respected and seen to be non-partisan. It is, in my view at least, unarguable that the dismissal of the Whitlam government in 1975 highlighted a vulnerability in our constitutional system. The subsequent release of correspondence between the Governor-General at that time, and the ‘Palace’ (that is, with the monarch and the individuals that purported to represent her) also demonstrates, at best, a failure of the monarch to abide by constitutional conventions, and at worst, an attempt to undermine them. However, the decision to dismiss the government was made by the Governor-General himself, not by the monarch. If we simply substituted an Australian head of state, whether appointed or elected, for the British monarch, then unless other changes to the constitution are implemented, it is just as conceivable that an Australian head of state might proceed to dismiss a democratic-elected government.
Other than a small nationalistic ‘sugar-hit’ that we might get from the transition to an Australian head of state, I do not see a compelling case for changing the system unless that change is accompanied by a more wholistic change of the system that addresses the manner in which that Australian head of state is appointed, the duration of that appointment, and the powers of the head of state, including the power to appoint and dismiss governments.
Despite all the bluster of the ‘Yes’ campaigners following the failed republic referendum in 1999 that the conservative monarchists had killed off the referendum, that fact was that the referendum failed principally because a significant number of the ‘pro-republic’ population voted ‘No’ because they did not agree to the model put forward in the referendum. From memory, that model addressed the manner of appointment, but not any other issues, which rather begged the question as to what would be the future role and powers of the new head of state.
In my view, if the republicans are to use their time and resources effectively, they should be devoted to explaining how our constitution operates (without any editorialising), identifying the flaws and vulnerabilities, and then systemically working each of those flaws in consultation with the public to develop a new constitutional model. To be fair, the Australian Republican Movement has done some of this work, and has developed its own alternative model. The problem is you would not know about it, because one hears from them are the denunciations of the monarchy and their unsuitability for having any role in our constitutional system. In any event, fixing on a model that they prefer seems a little presumptuous.
It is, from my point of view, a classic case of putting the cart before the horse. Fix and/or improve the system first; work on that and get it right. Once that is done, changing who is the head of state should be a walk in the park.
