Flint, David --- "A Rolls Royce Constitution" [1999] ALRCRefJl 11; (1999) 74 Australian Law Reform Commission Reform Journal 52

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Reform Issue 74 Autumn 1999

This article appeared on pages 52 – 54 of the original journal.

A Rolls Royce Constitution

By Professor David Flint

There are two questions in the republican referendum. First, why should Australia become a republic? Second, is the republican model better than, or at least as good as the present Constitution?

So what are the reasons for becoming a republic? Some rather odd ones have been proposed. For example certain ex-diplomats and other worthies tell us that some foreign leaders find our Constitution ‘confusing’. So to meet their needs we have to change our system of government. It’s claimed an Asian Cabinet Minister told a well known Australian businesswoman that his country was ‘ready to help us in our struggle for independence from Britain’. And the former Indonesian President, General Suherto, was apparently equally confused about our Constitution. He couldn’t understand why the Governor-General wasn’t thrown into gaol in 1975. (Under the referendum model, a Prime Minister won’t even have to do that. He or she will be able to sack the Constitution referee whenever he or she wants to.)

But many Australians probably don’t understand and don’t need to understand the constitutional arrangements of other nations. It’s their business not Australia’s. And our constitutional arrangements are for Australia’s good, not others.

Yet other reasons have been advanced in the media. It is claimed a republic will improve trade, create jobs and unleash our artists from cultural oppression. It will allow us to experiment with the legislation of illicit drugs! Even in the 1931-32 Bodyline cricket series between Australia and Britain has been dragged in - by a former Chief Justice!

These ‘arguments’ are seriously being put forward as grounds to amend, remove, replace or add to about one third of our federal Constitution. Yet the Australian Constitution is the blueprint for one of the most successful, enduring, open and generous societies the world has ever seen. To change it Australians will need compelling arguments.

When former Prime Minister Paul Keating converted republicanism from a curious dinner party topic to a political platform, he knew he must make a very good case for change. So first he ridiculed our Constitution. It was, he said, imposed on us by the British Foreign Office. (Surely he meant the Colonial Office?) He was then reminded that our Constitution was drafted in Australia by Australians. And unlike other great Federations at the time, it was actually approved by the Australian people in each of the six States - not just by politicians. So he fell silent. But only briefly. Then he changed tack. It was, he now claimed, only about having an Australian as ‘Head of State’.

The first difficulty was that most Australians had never heard of this term. The term ‘Head of State’ is not in our Constitution. It’s a term so rarefied it’s mainly used by diplomats. To them it’s very important. It determines such great issues as who sits where at banquets. Or who gets a 21 or 19 gun salute. In fact, a recent Gallup poll published by the London Daily Telegraph makes the same point. Nearly half of those polled could not correctly name the British Head of State.

Humpty Dumpty once said to Alice: “When I use a word it means just what I choose it to mean, neither more nor less.” Similarly, a ‘Head of State’ means precisely what a government chooses it to mean. The Head of State can be a president, a dictator, a king, a king and a bishop, an emperor, a grand duke etc. He or she can be purely ceremonial or exercise absolute power. Hitler called himself a Head of State. Stalin didn’t. What they called themselves didn’t really matter. Incidentally, you can have more than one - the Soviet Union had 24. Imagine. Twenty-four residents as Presidents!

Now the Australian government, and its predecessors, hold out the Governor-General as our Head of State. As Professor Colin Howard observes: “It seems ... that practice and law now coincide to support the proposition that, certain matters of ceremony and courtesy apart, the Head of State in Australia is not the Queen but the Governor-General.”¹

The Australian Republican Movement nevertheless challenges this conclusion.

The proposition is that the functions of the Governor-General, who is said not to be the Head of State, are to be transferred to a President, who will then miraculously become a Head of State! Note particularly that the functions of the Queen (who is said to be the only Head of State) are not to be transferred to the President.

The Queen’s role in the appointment of the President will in fact be transferred to the politicians collectively in a joint sitting of the Parliament. The Queen’s role in the dismissal of the President will be transferred to the Prime Minister. What we are being offered is a politician’s republic.

But apart from the difficulty of finding a worthy reason for change there is another serious hurdle. We come to the second question. If you propose to gut your Constitution you have to replace it with something better. The republicans have failed this test. It’s not as though there hasn’t been time. This debate has been going for the better part of a decade. It’s not as though there hasn’t been the opportunity. There was Mr Keating’s Republican 1998 Advisory Committee stacked to the brim with republicans and with skewed terms of reference. It provided public funds to republicans to come up with a model. Then there was Prime Minister John Howard’s Constitutional Convention. It gave the republicans a magnificent opportunity to produce the best republican model.

The republicans have, since 1993, produced two models. The first Keating-Turnbull republic did not, as it claimed, make the President a mirror image of the Governor-General. It would have made Australia similar to the present French Fifth Republic with two powerful competing politicians, a President and a Prime Minister. (Incidentally, the only reason France tolerates the inevitable tension between these two is that the dozen or so previous Constitutions since 1789 failed when they were put under pressure.)

The second republican model goes to the other extreme and it is the one that is the culmination of the republican’s efforts. It bears all the marks of frantic manoeuvring and ‘back of the envelope’ drafting at the 1998 Constitutional Convention. It puts the President at the absolute mercy of the Prime Minister. Unlike any other democratic republic in the world, the Prime Minister will be able to sack the President. At any time. For any reason. Or no reason. Without any notice or right of appeal. A power which the Prime Minister certainly does not have now. Leading experts on the Constitution - mainly republicans - have identified the model’s serious flaws. And, remember, the Australian public is passionate about fair play. A rule change which allows one of the captains to send off the referee when he’s about to rule against that team will be recognised as the rort it so clearly is. This republican model is not only an embarrassing failure - it is dangerous.

The leading democratic republican Ted Mack points out that many in the Australian Republican Movement, the media and academia know that the model is flawed yet continue to push the ‘Yes’ case. We must ask, why the rush? Is it to get on with a bigger agenda? Perhaps the flag is next and then the States. And then?

Whatever the reason Australians are now being told not to worry about the details. They can be fixed up later! This is extraordinary. It is difficult to think of a better way to permanently destabilise and damage our system of government than to have constitutional debate, confusion and change every couple of years.

Just as a used car salesman trying to sell a wreck tells a gullible purchaser to bring it back for repairs if something goes wrong, the Australian people are being told to take a wreck in exchange for their Rolls Royce constitution. They won’t wear that.

* Professor David Flint was a legal adviser to the ACM No Republic Team at the 1998 Constitutional Convention and the 1999 No Republic referendum campaign.

He is also the National Convenor of Australians for Constitutional Monarchy.

Endnotes

1. C Howard Australian Federal Constitutional Law 3rd ed, LBC Sydney 1985, at 112.