As far as I can tell, the position of the Australian Republic Movement ever since the failure of the 1999 Republic Referendum has effectively if tacitly been that there is no point in another referendum while the current Queen remains on the throne. Certainly the ARM’s current “plan” (such as it is) suggests such a strategy. It envisages a possible referendum in 2022 when the Queen will be 96 if she lives that long. More likely Charles will be on the throne. The ARM hypothesis seems to be that the reverence in which the current Queen is held was a significant reason why the Republic Referendum failed in 1999. Presumably the hope/supposition is that Charles will rapidly show himself to be such a buffoon as King that Australians will be much more receptive to voting for a republic than they were in 1999. But does that have any substance? The 1999 Referendum failed within a couple of years of the death of Princess Diana, a time when the Queen was widely reviled by her own subjects including Australians. Things had recovered a bit by 1999, but it isn’t evident that the Queen was especially revered.
Similarly, although Charles seems to be a tad eccentric, it’s unlikely that he will emerge in his 70s as the Renegade King and immediately alienate his subjects. More likely he will act under the close guidance of senior Royal Household advisers, just as his mother did in her early years on the throne.
In my view the ongoing seeming stability and complacent acceptance of constitutional monarchy by most Australians (although a recent poll showed increasing support for a republic) has much more to do with a belief that the current Australian system is itself stable and durable. “If it ain’t broke don’t fix it” remains the prevailing view. However that attitude itself flows from a fairly abysmal level of ignorance about our Constitution on the part of most Australians. There are numerous deficiencies in the Constitution, not least its failure to embrace First Nations peoples, the grossly defective disqualification provisions of s 44 and lack of protection of basic rights and freedoms.
However the potential instability flowing from the lack of clarity of the relationship between the royal Head of State, her Australian representative the Governor-General and our elected governments is in my view the most serious problem, even though it has only manifested itself in practice once since Federation.
To comprehend the deficiency fully, an Australian citizen would need to have a good basic understanding of the concepts of representative and responsible government in a Westminster democracy; the respective roles of Queen, Governor-General and Prime Minister; the nature and operation of unwritten constitutional conventions especially those surrounding reserve powers; and the constitutional doctrine of separation of powers. The reality is that almost no-one has a real grasp of those things other than constitutional lawyers.
Fortunately, it is possible to explain at least the basic problem in fairly stark if simplistic terms. The Governor-General possesses unwritten constitutional reserve powers to sack the Prime Minister and elected government (or call an election against the will of the government) in some circumstances defined by unwritten conventions that are themselves a bit vague. One of the associated conventions is that the Governor-General should warn the elected Prime Minister if the G-G is contemplating sacking the PM and his or her government. However, Sir John Kerr sacked the Whitlam government without warning the PM, despite repeated advice from a High Court Justice (Anthony Mason) that he should give such a warning. But on a pragmatic view Kerr would have been a mug to pre-warn Whitlam. As Mason noted much later:
Sir John was very much aware of the possibility that the prime minister might seek to have him removed from office. Apart from his account to me of his conversation with Mr Yeend, he told me of the prime minister’s remark before the state banquet in honour of the prime minister of Malaysia, “It could be a question of whether I get to the Queen first for your recall or you get in first with my dismissal”.
Those few words by Whitlam himself starkly summarise the fundamental flaw at the heart of Australia’s constitutional system. Moreover, the Constitution didn’t exhibit that deficiency at Federation. At that time the Monarch appointed and dismissed the Governor-General on the “advice” (read “at the direction” – one of those pesky unwritten conventions again) of her British Ministers under Constitution section 2. In those days the Prime Minister who advised (directed) the Queen to dismiss the Governor-General was NOT the same Prime Minister in respect of whom the Governor-General could have a corresponding and simultaneous constitutional duty of dismissal. It wasn’t until the enactment of the Statute of Westminster 1931 (Imp) embodying the earlier Balfour Declaration of 1926 that the current Duelling Constitutional Six Shooters scenario was created. The first Australian Governor-General to be appointed by the Monarch was Sir Isaac Isaacs who was (rather reluctantly) appointed by George V (the current Queen’s grandfather) in 1931 on the advice of Labor Prime Minister Scullin.
The Duelling Six Shooters scenario has never been remedied by constitutional amendment since that time. Consequently, there is no reason whatever to believe that any new constitutional crisis that might arise (whatever the details) would proceed differently from the disastrous and divisive Whitlam Dismissal saga.
Again fortuitously, there is a clue pointing towards a possible pragmatic solution, one which would not involve the need for a referendum which would almost certainly fail in Australia’s current political culture, provided by the events leading up to the Whitlam Dismissal itself. As historian Jenny Hocking has fairly recently uncovered, it seems that Kerr had actually reached an informal understanding with the Palace that would in fact have allowed him to pre-warn Whitlam that he faced dismissal without simultaneously courting his own demise:
Kerr’s 1980 journal details how he communicated with the Queen’s private secretary, Martin Charteris, directly about the safety of his own job in the lead up to the dismissal.
Kerr referred in his journal to communications with Charteris about his fears Whitlam could recall him if he found out he was secretly considering the dismissal.
The records also suggest Kerr confided in Prince Charles just a month before the crisis began that he was considering dismissing Whitlam.
Again Kerr expressed concern for the chance Whitlam may have him recalled.
Charteris told Kerr the palace would act to delay matters if “the contingency to which you refer” occurred.
The best guess as to why Kerr failed to warn Whitlam, despite that reassurance from the Palace and Mason’s advice, is that he was simultaneously being told both by the UK government and Charteris that the best outcome would be if the Queen could be kept completely out of Australian partisan politics: – it was an Australian problem for Australians to resolve as far the British were concerned. The facts suggest that protecting the Queen from controversy was Kerr’s overwhelming motivation to opt for ambushing Whitlam rather than giving him a fair go and warning him. All this is laid out by eminent constitutional scholar Anne Twomey, who pithily refers to The Dismissal as “a conspiracy of masterful inactivity”.
An ad hoc “republican” solution
I see no sensible reason why Australia’s Parliament and political leaders should not be able, at least at a time when no potential constitutional crisis is obvious or imminent, to agree on a joint approach to the Monarch as Head of State setting out their joint advice/request as to how a future Whitlam Dismissal situation ought usually be handled by the Palace. That advice would be that if a future Prime Minister advises the Head of State to dismiss the Governor-General in a situation where the latter has warned the PM that he or she faces dismissal, then the Head of State should, before accepting and implementing the PM’s advice, require formal written advice from at least two recently retired Chief Justices of Australia, analysing:
(1) whether the formal constitutional prerequisites for dismissal of the PM by the G-G are present;
(2) whether such a dismissal is consistent with evolved constitutional conventions in all the circumstances; and
(3) whether the warning to the PM has been appropriate in its nature and timing.
Depending on that advice, it might be appropriate for the Head of State to “delay matters”, as Sir Martin Charteris put it in 1975, until the deadline for the Governor-General’s warning to the Prime Minister has expired.
That suggested procedure would be entirely consistent with the Head of State’s basic role towards an elected government which, as Sir Walter Bagehot put it, is “the right to be consulted, the right to encourage, the right to warn”. Moreover, a joint approach to the Monarch by leaders of all the main political parties to establish this mutually agreed approach in a constitutional crisis, would avoid the possibility of the Monarch being dragged into an Australian partisan political controversy, which appeared to be both the Queen and UK government’s principal concern in 1975. Instead the Monarch would rightly be seen by Australians as fulfilling the proper role of an impeccably impartial arbiter acting strictly in accordance with the principles Australians wanted as well as the constitutional advice of the most eminent Australian lawyers.
Incidentally, I also see no reason why an analogous process could not be enshrined in relation to the appointment of the Governor-General. It seems to me that Parliament could, at least under the nationhood power, legislate to require the Government to:
(1) call for nominations for Governor-General;
(2) put nominees up for endorsement/approval by both Houses of Parliament;
(3) conduct a plebiscite to ascertain the wishes of Australian in relation to any one or more nominees pre-approved by at least 75% of Members of Parliament; and
(4) advise the Monarch to appoint the successful candidate as Governor-General.
I must confess I haven’t previously seen a suggestion along these lines, which makes me wonder whether I might be overlooking some basic constitutional or other principle that would make it impossible. But I can’t immediately think of one, so I might as well run the idea up the constitutional flagpole and see if anyone salutes.
It seems to me that, together with the proposal outlined above to resolve a Dismissal Crisis, this would actually create an Australian constitutional system that would in truth have a plausible resemblance to the notion of a Crowned Republic that David Flint and others deployed falsely to confuse and mislead the Australian public into voting against a Republic back in 1999. And it would so so without any need for a referendum.
Nevertheless any referendum to constitutionalise that system and make Australia a formal Republic would stand a much greater greater chance of success after the Australian people have experienced it in action for a few years. There would simply need to be variations to substitute Parliament and the people as appointors of the Head of State who would then be called President rather than Governor-General, while dismissal of the President would be directly by the two retired Chief Justices, without the formal intercession of the Queen, on the advice of the PM.