AN ADDRESS TO THE ROCKHAMPTON BRANCH OF
AUSTRALIANS FOR CONSTITUTIONAL MONARCHY

The question that some people ask is why Australians should strive to retain a system under which a British Monarch is our Head of State when our ties to Britain have unfortunately become so much weaker over the years.
In an attempt to answer that question I do not intend to dwell on such matters as loyalty and tradition, important though they are, because they depend so much on the personal attitude of the individual. There are, however, other strong reasons for resisting a change to a republic.

The Monarchy is an essential part of our Constitution. It is not some sort of useless appendage that could be removed without affecting what is left. A change to a republic would not be simply a matter of substituting a few names. It would mean putting a new type of constitution in place of the existing Constitution and the change would have significant consequences some of which are foreseeable while others might be unpredictable.

The framers of the Australian Constitution which came into effect in 1901 were influenced very strongly by the constitutional position in Great Britain. They were influenced also in some respects by the United States Constitution but not in a way that affected the position of the Monarchy. Under the United States Constitution the President does not require the support of Congress to hold office - and often, as at present, Congress may be dominated by a party to which the President does not belong. In Australia, on the other hand, the Government of the Commonwealth or of a State holds office only so long as it has the support of the Parliament. It is this fact that makes the position of the Monarch acting through her representatives, the Governor-General and the State Governors, so important. Responsible government depends in the end on the existence of an impartial umpire who can ensure that the law and conventions of the Constitution are observed and that role is played in Australia by the representatives of the Monarch.

It is true that as a result of long constitutional development in England most of the powers which were exercisable by the Monarch personally are now, by convention, exercised only in accordance with the advice of her Ministers. Similarly, in Australia although the Constitution in form gives the Governor-General powers which are those of an absolute monarch or dictator, most of those powers are by convention exercised only on ministerial advice. However, there are some powers which the Governor-General or, in the case of a State, the Governor, can exercise as he or she thinks fit, without the advice, or contrary to the advice, of the Prime Minister or Premier. Those powers are known as the reserve powers. They are not often exercised but are held in reserve to be used when necessary to ensure that the Executive acts in accordance with the law and conventions of the Constitution.

Constitutional conventions which govern the exercise of the powers of the Queen and her representatives, including the reserve powers, are not rules of law enforceable by the Courts - at least that is the position established by the authorities at present. Some of those conventions are clear but others are ill-defined. It is clear that if, following an Election, no party has a majority, the Governor-General or Governor may have a real discretion to exercise as to who should be appointed Prime Minister or Premier.
That situation has arisen in the past and could easily arise again in the future. It is clear also that the Governor-General or Governor can dismiss a Prime Minister or Premier who has lost the confidence of the House of Representatives or the Legislative Assembly and who refuses to resign or to advise dissolution of the House. The Governor-General or Governor may dismiss a Prime Minister or Premier who is attempting to govern without supply. The dismissal in 1975 of Mr Whitlam by Sir John Kerr has proved controversial, because Sir John acted before supply had been exhausted; however, Mr. Whitlam was threatening to govern without supply. There is precedent also for a Governor-General or Governor to dismiss a Prime Minister or Premier who cannot carry out essential services without breaking the law. Sir Philip Game exercised that power by dismissing Mr. Jack Lang.
There is a dispute as to whether that power should be exercised before a court has established that a law has been broken but there may be circumstances in which legal action may not be rapid enough to resolve the situation before the community is plunged into chaos. The Governor-General or Governor may refuse to accept the advice of the Prime Minister or Premier to bring about an early dissolution of the House of Representatives or the Legislative Assembly. These are only examples; they do not exhaust the list of cases in which the reserve powers may be exercised.
Unexpected situations, which are not covered by existing precedents, can arise which require the Governor-General or Governor to exercise this role of impartial umpire. Situations of this kind have arisen surprisingly often in countries throughout the world which have systems similar to our own. There have been a number of instances in Australia. Most recently, in Queensland, in 1987 and in Tasmania, in 1989, political crises arose which were resolved only because the reserve powers were available to the Governor.

The system of responsible government would be at risk if the reserve powers were exercised in a way that showed political bias rather than with complete impartiality. If Australia were to become a republic one critical question would be, what provision should be made with regard to the reserve powers. It would need a constitutional provision to confer those powers on the President and it would need a further constitutional provision to require the President to exercise those powers in accordance with the conventions which were developed in relation to the Monarch and her representatives and would not automatically apply to the case of a President. This immediately gives rise to difficult questions.
Should the powers and the conventions be defined in the Constitution? If the conventions were converted into rules of law that would prevent their further development. That would be most undesirable because experience has shown that the need to exercise the reserve powers can arise in situations which have not been previously contemplated. To take only one example, the power of the Governor-General to appoint times for holding the sessions of the Parliament has customarily been exercised on the advice of the Prime Minister.

Suppose that the Prime Minister simply refused to hold a session of Parliament in a situation of crisis in which the national interest required that a session be held. It is strongly arguable that in those circumstances it would be in accordance with the conventions for the Governor-General to require a session to be held. A President would not be able to do so if his or her powers were limited to be exercised in ways that had been known in the past. It would be most undesirable also if the courts had jurisdiction to decide whether a reserve power had been validly exercised, because those powers must often be exercised in an emergency that requires urgent action.
For example, if a government clung on to office although supply had run out, there could be disastrous consequences if the situation could not be remedied without the delay that litigation might cause. On the other hand, if the reserve powers of the President, and the conventions governing them, were undefined, there would be no means of ensuring that the President would act impartially and free from political influence in their exercise.
The very existence of the Monarchy depends on the fact that the Monarchy is completely impartial and the same impartiality is expected of the Monarch's representatives. Every Governor-General since Federation has exercised his powers impartially, although some of those who filled that position were active in politics at the time of their appointment. It could not be assumed that a President would regard himself or herself as required to act with political neutrality. The President would not hold office as the representative of an impartial monarch but would occupy in his or her own right an independent office derived from the Constitution, and might well have bEen chosen to fill that office as the representative of a political party.
When the present campaign to establish a republic first began, it was suggested that only minimal changes to the Constitution would be necessary. It is now apparent that more than minimal changes would be required to deal with the important question of the reserve powers, and that it would not be easy to decide what changes should be made for that purpose.

A further question in dispute is how a President would be chosen. It is apparent that the general wish of the public is that if there were to be a republic the President should be popularly elected. Unfortunately, however, popular election would give a President a mandate apparently greater than that of the Prime Minister, who is not directly elected by the public, and would inevitably mean that the President would be the nominee of one or other political party.
The suggestion has been made by the Government that a President should be chosen by a two-thirds majority of the Parliament. That would not necessarily mean that politics would be kept out of the choice but it would almost certainly render the choice open to bartering between the various parties in Parliament and to political manipulation.
Yet another suggestion is that the choice should be made by a committee consisting of eminent or representative persons. An effective way to influence the choice by a committee is to choose pliable committee members. Experience elsewhere in the world suggests that whatever method is devised, eventually the choice of a President would be a political one. Of course, at first the appointment might be made of persons free from political allegiance in order to make the new constitutional arrangements acceptable. In the end however, politics would be likely to prevail.

The United States provides an illustration of what would be likely to occur. The Constitution of the United States provides for the appointment of the President by an electoral college which it was hoped would ensure that the most worthy and eminent person would be chosen. In fact however, the college decides on purely party lines so that the world knows before the college even meets who will be elected as President.

The question how the President could be dismissed also gives rise to controversy. One suggestion is that he or she could be dismissed only by a two-thirds majority of Parliament. However, one of the checks inherent in the present system is that a Governor-General can be dismissed by the Monarch at will. This reinforces the notion that the Governor-General merely holds office in a representative capacity which requires him or her to act with the strictest propriety. It is true that the Government would be unlikely to recommend to the Monarch the dismissal of a Governor-General who had made a decision on political grounds if that decision favoured the Government. However, the possibility of peremptory dismissal is a check, however slight, on the abuse of the position of Governor-General or Governor. A political President might prove to be either a rival or an ally of the Government.
The recent history of India shows how a Prime Minister and President acting together can pervert the Constitution. In 1975 Mrs Gandhi, the Prime Minister, was in serious political difficulties. Without even consulting the Cabinet, let alone the Parliament, she persuaded the President to issue a declaration of emergency on grounds which both he and she knew to be false. She was thus enabled to imprison the leaders of the Opposition and to act as a virtual dictator for many months.
On the other hand, a hostile President, relying on the status given to the office by the Constitution, might challenge the power of a Prime Minister.

Perhaps the most serious question that would have to be resolved if a republic were to be created is what would be the position of the States. No doubt it is reasonable to assume that if the Commonwealth became a republic, the States would follow suit. It would be important for each State then to decide what substitute there should be for the Governor under the republic, because the Governors, like the Governor-General, have to exercise reserve powers. The suggestion has recently been made by the Premier of New South Wales that there would be NO NEED FOR A STATE TO HAVE A GOVERNOR AT ALL!
However, as I have already mentioned, the system of responsible government requires that there should be an impartial person to exercise the reserve powers. If those powers could be exercised in respect of a State by the President or his representative, the States, which already suffer Commonwealth interference in the exercise of their functions, would be further subordinated to the Commonwealth. In fact, in India the State Governors (as they are still called) are appointed by the President, and they have not infrequently exercised their powers contrary to the interests of the State Governments simply for the political purposes of the President.

The consequences of radical change are often unpredictable. No one can say with confidence what the ultimate result would be if the Constitution were amended in the ways necessary to establish a republic. The powers, functions and status of the States would certainly be at risk.

The obvious question then is why should we contemplate making this change? Our Constitution is far from perfect, perhaps because perfection is not attainable in this world, but it has served Australia well. Although we are a comparatively young nation we are on of the oldest continuous democracies in the world. During this century, which has been rightly said to have been the most terrible in western history, Australia has been outstanding in its stability, freedom and tolerance.
Why should we scrap a system that has made this possible? The persons who have advocated the change to republic have suggested a number of reasons for making the change. Particularly unconvincing, and rather demeaning, was the suggestion that if we were a republic, the countries of Asia would like us better and trade with us more.
Another suggestion that is often repeated is that Australia is not independent because our Monarch is not an Australian. Anyone with the most elementary knowledge of constitutional law knows that we are completely independent in all respects - except, perhaps, in so far as the Government has chosen to subordinate us for some purposes to the Human Rights Committee of the United Nations - but that has nothing to do with the Monarchy.
Only a week or so ago, the Premier of New South Wales was reported to have said that Australia could have made a more effective protest to France about the nuclear tests if the Queen had not been our Head of State. People in his position really should not talk such nonsense. Yet another argument has been that if we became a republic we might acquire a new spirit of national unity. As some of those who have advanced that argument have since realised, the truth is that the attempts to make Australia a republic are proving divisive rather than unifying.
A matter that seems to have influenced Mr Malcolm Fraser in converting him to the republican cause is his belief that some members of the Royal Family have proved unworthy or respect. I do not know how much credence one can place on media gossip concerning some members of the Royal Family, but the error in Mr Fraser's approach lies in a failure to distinguish between the worth of an office and the personal qualities of the holder of that office.
There have been times when we have had disreputable politicians, corrupt police and even bad judicial officers, but no one thinks that that is a good reason for doing away with the Parliament, the police or the Courts. There have been scandalous monarchs in the past, but the constitutional monarchy has continued to function well. In any case, our present Monarch is utterly above reproach, as were her parents. The truth is that no practical advantage would be gained by abandoning our system of constitutional monarchy.
The only benefit that could be arguably be suggested would be a symbolic one. The change would not in any way improve the working of our Constitution. It would not solve the economic and social problems that our nation faces. It would create difficulties and dangers, including the real risk of weakening the system of checks and balances which operate in our Constitution to curb excessive exercises of power.

In short, our system of constitutional monarchy has served us well and there is no reason to abandon it.

Some people take the view that a republic is inevitable. That assumption under-estimates the difficulties of making a change. At the very least a republic could not be established unless a referendum in support of the change was approved by a majority of all Australian voters and by a majority of the voters in a majority of States.
Experience shows how difficult it is to succeed in carrying a referendum and it is virtually impossible for a referendum to succeed if opposed by a major political party. In any case it is strongly arguable that even if a referendum were approved in that way that would not be enough to change the Constitution from a monarchical one to a republican one. The legal position is complex and I am afraid I shall have to become rather technical in endeavouring to explain the position to you. There are two obstacles which would have to be overcome before Australia could be made a republic. First, the Australia Act provides that Her Majesty's representative in each State shall be the Governor. This provision would have to be repealed if Australia were to become completely republican.
The Australia Act can be repealed only by a Commonwealth Act passed with the concurrence of all the State Parliaments unless the Constitution is in future altered in accordance with Section 128 of the Constitution to give the Parliament power to alter the Australia Act.
Section 128 itself provides that no alteration affecting the provisions of the Constitution in specified ways in respect to a State, "or in any manner affecting the provisions of the Constitution in relation thereto", can be made unless approved by a majority of the electors voting in that State.
The words of Section 128 are ambiguous but it may be strongly argued that their effect is that a referendum giving power to the Commonwealth Parliament to alter or repeal the Australia Act in a way that would affect the position of the Governor of every State could be carried only by a majority of electors in all States.

The second obstacle is created by the fact that the Commonwealth was created not by the Constitution but by the Constitution Act. The Commonwealth was established because, as the Act recited, the people of the Colonies had agreed to unit "in one indissoluble Federal Commonwealth under the Crown".
Section 128 allows amendments to be made to the Constitution and not to the Constitution Act. That Act was passed by the Parliament of the United Kingdom but since the Australia Act the United Kingdom Parliament no longer has power to repeal or amend it. Since it is not a Commonwealth Act the Commonwealth Parliament cannot do so. No doubt the Act could be repealed or amended by Acts passed with the agreement of all parties including the States, in the same way as the Australia Acts were passed.
The position therefore may well be that to become a republic it would be necessary to obtain the agreement of either the Parliaments of all the States or a majority of the people in every State. Putting aside these legalities, as a matter of principle it is clear that the Commonwealth, which was intended to be united under the Crown, should not be converted to a republic without the consent of all the parties to the union, that it, without the consent of all the States.

In the circumstances, it seems somewhat over-confident to assert that a republic is inevitable. In fact, throughout the nineteenth century there were influential people in Australia who even then were saying that a republic is inevitable. Let us hope that in another hundred years time, the present predictions of inevitability will still have not been fulfilled.

9th October 1995