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I have written about why I believe Australia should become a Republic, but it would be an injustice to the aims of this blog if I were to not describe the consequences of doing so, for this blog was never meant to be polemical (though it sometimes is) but it was intended for the general edification and so that I might seek the Truth.

The path to becoming a Republic will throw up many thorny issues. How can we amend the Constitution of Australia Act (UK) which contains the Constitution of Australia? The word ‘Crown’ has a million meanings; how would we replace that word where it is deliberately ambiguous? But, these are highly technical issues that can be solved. For the layperson, the end result will simply be that the word Queen is deleted and replaced by the word ‘President’. What effect will that have?

I have said that becoming a Republic will close off the last vestiges of monarchic control over Australia, however indirect, through the Queen’s potential advice to the Governor-General and Governors and through those few instances where information, by convention as strong as law, is sent through her. The most striking example that remains is the choice of the Governor-General him/herself. Who knows how much influence the Queen has had over past selections, because as I said there is a very strong constitutional convention that you may not tell others what the Queen says to you.

The monarchists often argue that it is a fundamental change to remove the Queen from our constitutional system, that she is an apolitical actor who can act when all else is shorn by partisanship. In truth, that role is now fulfilled by the Governor-General – as the example of Canada in 2008 shows. There, the Prime Minister sought to prorogue Parliament and advised the Governor General, Michelle Jean, to do so. He spent two hours convincing her, and was only allowed to prorogue Parliament for a short time so that he might draft a new Budget and Stimulus Package that the new Parliament might approve of.

The only functional role that the Queen plays, and ought to play, is in the dismissal of the Governor-General. It is argued that since the Prime Minister can dismiss the Governor-General and the Governor-General might dismiss the Prime Minister, that only the Queen might break the deadlock. It seems like a reasonable argument, except that any close study of the reserve powers shows that it is absolute hokum in practice. The PM v GG fight is like pistols at dawn, there are numerous incidents where everything turned on a matter of timing. If PM Whitlam had sought a double dissolution before his infamous dismissal; he would have prevailed. The Queen could only have acted if she were right in the thick of events, knowing everything that was occuring; she would have had to act very swiftly. In most circumstances, it would be impossible. She might only act retrospectively, and that would only be in cases of gross constitutional impropriety and it would always be more appropriate to have such matters decided by the people at an election. It is difficult to imagine any scenario where such a crisis could occur without an election happening.

So, shall we assume that no change will occur? That would be stretching things too far, I think. What is the role of the President in an Australian Republic? There are arguments, even now, that the GG is the trustee of the Constitution who preserves the constitutional order in times of constitutional crisis; who tidies up the little niceties that others forget. The contrary view, that the GG is merely a functionary for a non-interventionist Queen, would obviously be swept away in a Republic. Would the President get too big for his boots, and believe in an expanded ‘trustee of the Constitution’ role for himself? Would he strike down Bills he sees as unconstitutional, or dismiss Prime Ministers for political scandals (rather than merely grossly unconstitutional actions)? It is possible. But the genius of the system is that, because the Governor-General is unelected he has no democratic authority to appeal to, so he is constrained to a minimalist role. In a country with a High Court to adjudicate most legal matters, he is restricted to exercising his powers in non-justiciable legal matters only. That is why I oppose any directly elected president (unless we rewrite our constitution in its entirety).

The difficulty with predicting the future is that Australia’s constitution consists mainly of constitutional conventions which are unwritten and constantly evolving. To the law student who has sat through a Fed Con lecture, that seems obvious, but the point is more nuanced than they might think. Who does the Governor-General represent, now that he is no longer the Queen’s representative? If he represents the Constitution, does he have the power to defend it (by refusing to exercise his powers if they breach the Constitution)? If he represents the People, does that give him a greater democratic mandate to dismiss the Prime Minister for gross political (and not constitutional scandal)?

Furthermore, the High Court has been willing to make implications from relatively minor changes to the Constitution. In the case of Sue v Hill, they quite expressly adopted an evolving view of the Constitution, based upon constitutional landmarks such as the Statute of Westminster, the Australia Acts and, probably, the Republic. One excellent example is Kable v DPP, which extended the separation of powers to State Supreme Courts. The Australia Acts abolished appeals from the State Supreme Courts to the Privy Council, leaving the High Court as the final arbiter on Australian legal issues. Kable pronounced that the Constitution now envisages one common law, with the High Court at the apex of a judicial hierarchy. The High Court said that the Constitution now contemplates such a hierarchy which includes ‘Supreme Courts’ which must be fit to bear the name ‘Court’. Thus, it was a breach of the Federal Constitution for State legislatures to legislate in a way that severely undermines State Supreme Courts. Such a ruling could not have happened before the Australia Acts, and I doubt that anyone could have foreseen Kable when they abolished Privy Council appeals.

To any non-law students whom I have yet to drive away, the summary of this article is simple. The Constitution rests upon twin pillars of law and convention. This flexibility is its great strength, but also a source of unpredictability.

In all that I have said, is anything of great concern? Should we be concerned that, when Prime Ministers intend to perpetrate grossly unconstitutional acts, that a President might stop them? It is not realistic to believe a non-elected President would intervene in anything but the most extreme circumstances.

A Republic poses some small challenges, but it also provides great opportunities to fortify our Constitution and allow the High Court to derive implications from it that are the privileges of any free and independent nation. Let it not ever be said that when faced with the future, Australians fear to look forward and preferred the stability of limbo.

Disclaimer: I am not a lawyer nor legal academic. These views are my own, and any legal facts should not be treated as legal advice or anything but the views of one student who may or may not be right. In particular, I have yet to actually study the Republic directly in my constitutional law elective and the entirety of this post is my own personal opinion.

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One Comment

  1. Great post. I have no legal knowledge or experience so a lot of it went over my head, however I could tell it was well thought out and reasonable. The bits I understood answered my question so for that, thank you!


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