Dr Amy McGrath OAM

The Road to a Republic:

The long march to a republic, driven by assorted of all parties in the Senate of the Commonwealth Parliament, currently occupies the Senate Finance and Public Administration Committee which is due to report in June 2009. The map that that long march will follow was drawn up by a previous inquiry of the Senate Legal and Constitutional Committee `Inquiry, with six members and thirty one participating’ members whose extensive deliberations from June 2003 resulted in a report on August 11, 2004.

This disappeared, for the time being, into the fog of the late 2004 election and the continued ascendancy of a disinterested government. Its deliberations were entitled the road to a republic and debated the need to move towards the establishment of a republic with an Australian Head of State.

Five of its six members were republicans. The sixth, Senator Nigel Scullion from the CLP in the Northern Territory, was not. Senator Scullion justifiably said the republic should not even be on the national agenda. The issue of whether Australia should become a republic had already been considered in the 1999 referendum. As Professor Flint, President of ACM, agrees with him. `Nothing has changed since 1999 to suggest the question should be reconsidered. It was unnecessary and inappropriate to revisit it now. Australians for Constitutional Monarchy (ACM) Internet Site 8.11.2004.

Its majority report proposed an initial national plebiscite on the question of whether Australia should become a republic. If the result was yes, a second plebiscite would be held. At that vote, Australians would choose their preferred model from five options. Once agreed on a model, a group of constitutional experts would refine the details and it would be put for final approval at a constitutional referendum; these three events to be held consecutively at the same time as the federal elections. Given this, the process would take ten years. Notably its conclusions were identical with the policy of the Australian Republican Movement (ARM).

Not all republican constitutional lawyers agreed with this policy. Pro-republican Professor Gregory Craven, Western Australia’s Catholic University Professor of Government and Constitutional Law, condemned the inquiry’s road to a republic as an abuse of democracy for cynical ends when giving evidence to it.

The plebiscite proposals should not be seen as a genuine attempt to engage the Australian people in the republican debate. It is an essentially cynical attempt to extract from the electorate a premature statement of preliminary opinion, on the basis of a deliberately inadequate debate, and to use that statement as a gag with which to stifle republican criticism of the canonised model.

The Inquiry’s road to a republic report on August 11 2004 disappeared, for the time being into the fog after the ALP’s defeat in the late 2004 election and the continued ascendancy of a disinterested government. However the Senate’s assorted republicans, chiefly aligned with the ALP, sprang to life again when the Rudd Government came into office on November 24, 2007 and firmly placed it back on the agenda.

On November 11, 2008, Senator Brown introduced a private Bill to request a Plebiscite “to give the Australian people the opportunity to vote on whether Australia should be a republic by asking them `a simple question `do you support Australia becoming a republic?’ It requires a simple yes or no response. The question determines if Australians want an Australian as Head of State? It does not attempt to determine what model should be adopted, what powers the head of state should hold or other operational or governance issues.

Senator Brown’s Bill was passed by the Senate with the support of assorted republican Senators of the Green, ALP and Democratic Parties and a sprinkle of Liberal Party Senators. It was referred to the Senate Finance and Public Administration Committee on November 13. This Senate Committee has invited contributions up to February 6, and will report in June 2009.

The 2004 Committee proposals must surely have had the approval of the Rudd government despite serious condemnation from high profile fellow republicans of the plebiscite proposals, when first approved by the 2004 Committee, that plebiscites were mere push-polls that solved no problems, changed nothing and in Professor George Williams words `no constitutional significance whatsoever.’ These republicans included at the time Malcolm Turnbull, former leader of the ARM movement, the Hon. Peter Costello, the Hon. Tim Fischer, the Hon. Justice McGarvie, journalist Paul Kelly and constitutional lawyer, Professor Greg Craven.

The eminent jurist, the Hon. Justice Richard McGarvie, a staunch Labor man, warned:

A plebiscite, which simply asked people whether Australia should become a republic, without providing any of the details necessary for properly considering such an important question would, if approved, produces a process of drift, leaving the country, without leadership and postponed resolution for a long time.

Liberal Party Senator Nick Minchin, always a man of courageous conviction, sounded a far more grave warning on the plan for the two preliminary plebiscites of `the road to a republic’. No man was more qualified to do this than he. He was the Howard government organiser of both the 1997 Constitutional Convention and the 1999 referendum on the model by that Convention. He accused the movers and shakers of this inquiry of failing to accept the judgement of the people in the 1999 referendum.

Labor is committed to a two-stage process, which first involves destroying the legitimacy of our Constitutional Monarchy. The chosen vehicle for this is the device of national plebiscites, which has as its object the undermining of our constitutional monarchy to the point where it is hoped that it will simply collapse under the attacks. The plebiscites are a gigantic and irresponsibly expensive distraction designed to produce a vote of No Confidence in our current Constitutional arrangements.

Senator Minchin’s warning that Labor was bent on `destroying the legitimacy of our Constitutional Monarchy’, and to do this by producing `a vote of No Confidence in our current Constitution arrangements’ should be heard loud and clear for its true meaning that there is a Machiavellian conspiracy to destroy the Constitution. Not to make neither cosmetic changes nor even minor amendments but to destroy it altogether.

There can be no other road to a republic for the Crown is the Constitution as Ann Twomey says in her book, The Chameleon Crown: The Westminster system requires the Crown, indeed the Crown is its heart. If the Crown collapses so does the indissoluble union of the States within a federation.

Republican constitutional lawyer, Professor Greg Craven, also accused the republican movers and shakers of the plebiscites of Machiavellian tactics:

Their plan for a festival of republican plebiscites combines the buoyancy of the titanic with the transparency of a rigged horse race (Australian Financial Review 27.7.2004)

Professor Craven elaborated on the kind of trickery that could occur:

The tendency will be to advantage shallow, flawed proposals (such as direct presidential election)with much to shout about and more to hide … By eliciting from the population a premature answer based upon a shallow discussion of the relevant issues, they can be employed to lock-in a particular policy option (The Australian Parliamentary Group, ‘Referenda Plebiscites and Sundry Parliamentary Impedimenta).’

Distinguished lawyer, Professor David Flint, echoed Professor Craven’s accusation:

It is simply first and foremost an underhand device to undermine respect for our present constitutional arrangements. The republicans’ desperate hope then is that undermining once achieved, Australians will eventually submit to a referendum proposal for a republic, even though they might not care for the particular model proposed (Paper Samuel Griffith Society).

The proposal that the vote on this fundamental question is to be by simple majority is manipulative and deliberate. It would preclude anyone raising an argument on the basis of comparing the merits of any of the proposed forms of republic with those of the present Constitution. The present Constitution is ruled out of any subsequent choice given in the second plebiscite. This tactic was tried unsuccessfully in the early stages of the 1999 Constitutional Convention. This should not be forgotten.

In all this dialogue for and against this road to a republic which the Rudd government has re-activated by hiding behind the least democratically elected man in the Commonwealth Parliament – Senator Brown – by 25,000 votes in Tasmania, one argument is seldom heard. The whole road to a republic circus via plebiscites and non-parliamentary convention is in profound contempt of s.128 which means what it says:

This Constitution shall not be altered except in the following manner:-
The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both houses, the proposed law shall be submitted to each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

This s.128 was the final decision of the Founding Fathers, as to the best means to defend their indissoluble union against any revolutionary change, after 10 years of debate. Theirs were the finest lawyers in the country from the six independent sovereign monarchical States joining in the indissoluble union of our unique federation. Most of them were also experienced politicians.

Senator Brown and the Rudd Government know that there are no problems with the existing Constitution, and therefore they have no specific clauses to put to both Houses of Parliament, as required by s.128, the one and only legal means of changing the Constitution. Nor would they have any legal case that would survive public debate in both Houses.

Why therefore they deliberately chose to act in contempt of s. 128? Dr Frank McGrath, author of The Framers of the Constitution exposes their Machiavellian intent:

The central reason for this change is to prepare the ground for the final Constitutional referendum under s.128 in order that any argument in favour of the retention of the present Constitution can be excluded from consideration, so that the change to a republic will have an unhindered passage. This attempt to exclude the existing Constitution from consideration can be seen at every turn of the procedure recommended by the Senate Committee (Paper on Plebiscites and Constitutional Change.)

A recommendation 24 sought alteration of the Referendum Act to ensure that partisan arguments for the YES and NO cases, as in the 1999 referendum no longer be allowed in favour of independent information by the Parliament’s education committee.

So what do these republicans really want that they have resorted to a Machiavellian conspiracy to beguile the public with a simple question put by a simple vote. Not a hint that the very suggestion is the first shot in a campaign that is as profound in its purpose as the tea-chests thrown into Boston Harbour – particularly as that first question is intended to be a propaganda tool backed by an expensive parliament authorised `education’ campaign.

What the question really intends is to banish all supporters of constitutional monarchy in the first round of the plebiscite. There will be no yes/no case pamphlet delivered to all electors.

The Joint Standing Committee on Constitutional Education and Awareness to be set up in the words of Dr Frank McGrath, author of The Framers of the Constitution and their Intentions:

It is clearly for the purpose of advancing the whole program to establish a republic. It is not to discuss arguments for and against a republic, or for the purpose of understanding how the present Constitution works, but to guide and advance the electorate towards advancement of the alleged movement towards a republic.

The danger is that it will be stacked as the 20/20 committee was with ninety nine republicans and one monarchist.

What is not well understood is that the models to be included in the second plebiscite are similar to the five models already put forward by the ARM in 2004. So why is the first plebiscite necessary at all.

As in any Machiavellian conspiracy the very audacity conceals the fanaticism that lies behind an apparently innocent mask and makes it possible to succeed with an unsuspecting public.

The road to a republic is a plan which has offered no reason for change other than a question `do you support Australia becoming a republic? This is the plan for revolution not evolution. This has as much validity as the original catchcry of the French revolution of liberty, equality and fraternity. But it does have a whiff of a Promised Land that exists beyond change into a republic. In fact the French slogan had more validity. But the same will happen here as in France long ago, ad later in Brazil, there will be unintended consequences. Divisions, power struggles, emergence of dictators.

As the distinguished Belgian Constitutional lawyer, Professor Gabriel Moens, warned:

There is no deficiency in the constitutional system of Australia that a change to a republic could possibly remedy. Rather, a change to a republic would be excessively complex, if not traumatic for the nation. Although it offers no advantages over a constitutional monarchy, any change to a republic would certainly involve the greatest leap into political, legal and constitutional darkness that this country had ever experienced. (The Australian Constitutional Defender No 9 2008).

Removal of the Crown will destroy the independent sovereignty of the States. All six states have always been sovereign states, existing independently as constitutional monarchies under the Crown and became more so after passage of the 1986 Australia Acts. The founding fathers devised the complex provision of s,128 of the Constitution specifically to ensure that one and only one procedure would be followed for any change and to deter any attempt to bring it about by a back door – particular by those with centralising ambitions based on subordination, even destruction, of the power of the States.

The independent sovereignty of the States has already been under attacks. It is not common knowledge that Prime Minister Whitlam advanced a proposal with the British government that all communications between the States and the Queen and the British government should be made through the Governor General. Although this had serious implications with the States, according to Ann Twomey:

He did not consult the States at all on his proposals … the Premiers wrote to Whitlam mid 1973 to defend their sovereignty and to try and elicit some measure of consultation or information but to no avail (p.97 The N.S.W. Constitution).

Similar efforts were subsequently made.

The current road to a republic is ultra vires in respect of s.128 of the Constitution. It is a Machiavellian plan to remove monarchists from the debate in the first round, to destroy the constitution and the independent existence of the states as sovereign monarchies in the second and third rounds. It would open the flood gates to such power struggles between States, president and parliament, as have broken out in almost all constitutional monarchies that became republics during the 20th century with many of them involved in civil war backed by outside powers like new imperial countries like Russia and China.