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Published online by Cambridge University Press: 24 January 2025
The change we propose [to the Australian Constitution] has very limited implications for the design of Australia's democracy. It is the so-called “minimalist” option. All the essential constitutional principles and practices which have worked well and evolved constructively over the last hundred years will remain in place.
The previous Australian government's aim was to remove the hereditary office of the monarch with only minor changes to the Australian system of government. Former Prime Minister Paul Keating stated that the proposed “republican” changes would have limited implications for the design and operation of Australian democracy. But his quest, and the quest of those who support the republican movement, may represent a more momentous shift in Australian political values and political sensibility than is widely admitted. This shift might lead to the enhancement of democratic participation. Indeed, the debate surrounding the republican initiative has already caused both a revised understanding of Australian political philosophy and a renewed appreciation of certain strong democratic threads in the history of Australia as a nation.
We acknowledge the contributions made by members of the University of Melbourne's public law interest group during a discussion in June 1995. Special thanks must be given to Mr Geoff Lindell, Reader in Law, and to Professor Cheryl Saunders, who read earlier drafts. We also thank Mr John Patmore, Ms Felicity Lewis and Ms Joo-Inn Chew who read parts of the paper and made helpful comments, and Mr Lucas Walsh, Ms Alison Smith, Mr Nehal Bhuta, Ms Sophie Blencowe, Mr Matthew Bell, Mr Julian Sempill and Mr Joo-Cheong Tham who read material onto tape and provided research assistance. We are also grateful to Ms Silvana Chamaa and Ms Beth Sywulsky for their transcription work. vVithout their invaluable help, this commentary would not have been completed. We are also grateful for research funding provided by the Faculty of Law and by a small ARC grant to complete this commentary. The errors are our own.
1 P Keating, “An Australian Republic: The Way Forward”, 7 June 1995 at 7. The new Howard government (elected 2 March 1996) proposes to put the issue of whether or not Australia should become a Republic on the agenda at a constitutional convention to be held in 1997. If no consensus is reached by the convention, the coalition intends to put a range of options for a Republic to a referendum in 1998 or 1999. See John Howard, “Republic Debate: Response by the Leader of the Opposition”, 8 June 1995.
2 Assuming that, under a republican system, the Head of State would continue to have the option of dismissing the Prime Minister.
3 P Keating, above n 1 at 4.
4 Ibid at 5.
5 Ibid at 6.
6 See Office of the Prime Minister, “An Australian Republic: The Way Forward: Questions and Answers”, 7 June 1995.
7 Ibid at 13.
8 P Keating, above n 1 at 5; ibid at 12.
9 Office of the Prime Minister, above n 6 at 3-6.
10 Ibid at 3.
11 Ibid at 6.
12 P Keating, above n 1 at 13.
13 Ibid at 13; Office of the Prime Minister, above n 6 at 4.
14 Office of the Prime Minister, above n 6 at 7.
15 P Keating, above n 1 at 10.
16 Office of the Prime Minister, above n 6 at 14.
17 Ibid.
18 Ibid.
19 Ibid at 17.
20 Ibid.
21 G Williams, “A Republican Tradition for Australia?” (1995) 23 FL Rev 133.
22 There is much scholarly debate over the range of republican conceptions which are apparent in Australian history. Some believe that the republican philosophy is barely evident: see G Winterton, “Presidential Power in Republican Australia” (1993) 28 Australian Journal of Political Science 40 (“Presidential Power”);cf G Winterton, “A Republican Constitution” in G Winterton (ed), We, The People: Australian Republican Government (1994)38(“We, The People”); C Condren, “The Australian Commonwealth: A Republic and Republican Virtue” (1992) 6 Legislative Studies 31. Others believe that a fertile republican philosophy is apparent in Australian history: J Warden, “The Fettered Republic: The Anglo-American Commonwealth and the Traditions of Australian Political Thought” (1993) 28 Australian Journal of Political Science 83 at 93-6; see generally, D Headon, J Warden and B Gammage (eds), Crown or Country: the Traditions of Australian Republicanism (1994). For a discussion of republican themes see: P Pettit, “Republican Themes” (1992) 6 Legislative Studies 29; K Boehringer, “Against Clayton's Republicanism” (1991) 16 Legal Service Bulletin 276; A Fraser, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (1990); A Fraser, “The Corporation as a Body Politic”, (1993) 57 Telos 5; M Lake, “A Republic For Women?” Arena (1994, No 9) 32; H Irving, “Boy's Own Republic” Arena (1993, No 8) 24. See also M A Stevenson and C Turner, Republic or Monarchy: Legal and Constitutional Issues (1994); J Hoorn and D Goodman (eds), Feminism and the Republic (1996); B Galligan, “Regularising the Australian Republic” (1993) 28 Australian J Political Science 56.See ,;1lso the debate between George Williams and Andrew Fraser: A Fraser, “In Defence of Republicanism: A Reply to George Williams” (1995) FL Rev 362; G Williams, “What Role for Republicanism? A Reply to Andrew Fraser” (1995) FL Rev 376.
23 A monarch is literally, a sole ruler.
24 See R Dahl,Democracy and its Critics (1989), ch 2.
25 C Sunstein, “The Enduring Legacy of Republicanism”, in S Elkin and K Soltan (eds), A New Constitutionalism (1993) 174 at 175. See J Warden, above n 22 at 88; see also C Sunstein, “Interest Groups in American Public Law” (1985) 38 Stanford LR 29 at 45. It is noteworthy that the wishes of some of the American Founders were that those who own the land should run the country. Hence the experience in the United States has been that private interests did affect the government: see G Williams, above n 21 at 136.
26 J Madison, The Federalist, No 10, 23 November 1787. This understanding is surprisingly close to the Burkean conception of representation. See, eg, Speech to the Electors, 3 November 1774, reprinted in R J S Hoffman (ed), Burke's Politics: Selected Writings and Speeches on Reform, Revolution and War (1949) 116. See also S Miller, Special Interest Groups in American Politics (1983) at 52-53.
27 R Dahl, above n 24 at 25.
28 P Keating, above n 1 at 12.
29 The Constitution, s 28, provides for a maximum term of three years for the House of Representatives.
30 The Governor-General is required by convention to act on the advice of his or her Ministers. One question is whether the Head of State should be able to dismiss a government if it acts illegally. While the Republic Advisory Committee endorsed the retention of this reserve power (An Australian Republic: The Options: Vol 1 The Report (1993) at 93), controversy surrounds when it should be excercised. This was seen, for example, at the time of Lang's dismissal on 13 May 1932. For a discussion of when the Head of State should intervene in such circumstances, see the proposed presidential powers discussed below. See also G Winterton, “Presidential Power”, above n 22.
31 The Constitution, s 2. It should be noted that the Queen also possesses a number of other constitutional powers: ss 58 and 60 vest the Governor-General with the power to reserve a law for the Queen's pleasure and s 59 permits the Queen to disallow a law within one year from the Governor-General's assent. The orthodox view of these powers is that they are obsolete or outmoded instruments of imperial authority. They are controlled by convention and no longer exercised. In fact, they are potentially capable of being activated in a legal sense. The Queen also possesses powers to appoint a deputy or administrator which could be exercised in an emergency or national crisis. Section 126 allows the Queen to authorise the Governor-General to appoint a deputy or deputies. Section 4 allows the Queen to appoint an administrator who acts with full powers of an acting Governor-General. See P H Lane, Lane's Commentary on the Australian Constitution (1986) at 20 and 640. Finally, the award of honours is still in the Queen's discretion. However, an independent council makes recommendations to the Governor-General who then advises the Queen. See the schedule to the Letters Patent given by the Queen at St James' Court on 14 February 1975.
32 See G Winterton, “The States and the Republic: A Constitutional Accord?” (1995) 6 Public Law Review 107.
33 Office of the Prime Minister, above n 6 at 6.
34 Ibid at 6.
35 Ibid at 13.
36 Ibid at 5.
37 Ibid at 6.
38 Ibid at 6. Former politicians who have recently departed politics have acted in aid of the public good; eg, the former Govenor-General, Bill Hayden.
39 Republic Advisory Committee Report, above n 30 at 54-6.
40 Ibid at 56.
41 P Keating, above n 1 at 11-12; Office of the Prime Minister, above n 6 at 4.
42 Sir Zelman Cowen, “Williamson Community Leadership Lecture”, 1 June 1995, cited in Office of the Prime Minister, above n 6 at 4.
43 Office of the Prime Minister, above n 6 at 3-4.
44 Ibid at 5-6.
45 P Keating, above n 1 at 13.
46 Ibid at 9.
47 Office of the Prime Minister, above n 6 at 7-9.
48 All sections mentioned in the text referring to the powers of the Governor-General are to be found in the Constitution.
49 Some of these powers are capable of being exercised as reserve powers and are mentioned below.
50 See description of the “reserve” powers, above.
51 Office of the Prime Minister, above n 6 at 9.
52 The traditional constraint on a potential enlargement of the office has been the unwritten constitutional conventions. A literal argument could be made to circumvent these devices in a future republic. This was not considered by the Keating Government, but it is consistent with the Keating proposal. If the conventions were thought to apply in their unwritten form, being conventions of Australian rather than monarchical government and therefore applicable in the republic, they may still be subject to a textual argument that they are not mandated by the Constitution. At the time of the 1975 Constitutional crisis, there was an assertion that the Governor-General was responsible, under s 61 of the Constitution, for maintaining the Constitution, and possessed the power under s 64, to summon and dismiss Parliament. This was said to lead to the conclusion that no unwritten convention of responsible government could change or diminish those legal provisions. The Keating Government's proposal should forestall this argument. See P Hanks, Australian Constitutional Law: Materials and Commentary (5th ed, 1994) at 342 (para 5.083) (For a view contrary to that put forward by the Governor-General in his letter to Prime Minister Whitlam, dated 11 November 1975, and attached “reasons” (ibid at 335-338, paras [5.073]-[5.074]), see Victoria v the Commonwealth and Connor (the PMA case) (1975) 134 CLR 81 at 155 where Gibbs CJ said that, “The Constitution makes no other provision for thedissolution of the Senate other than that contained in's 57”. His Honour also said that the “Governor-General is given power by ss 5 and 28 to dissolve the House of Representatives” (ibid).
53 G Winterton, “The Evolution of a Separate Australian Crown” (1993) 19 Monash University LR 1 at 10.
54 Opinion is divided as to whether this broad discretion is a critical problem. Evatt argued that it was both possible and necessary to define the reserve powers in order to increase their certainty and to confine the scope of the discretion: H V Evatt, The King and his Dominion Governors (1967) at 7-11 and 286-291. See also G Winterton, “Presidential Power”, above n 22 at 46. By contrast, Eugene Forsey argued that the reserve powers should continue to be flexible and adaptable. He contended that a satisfactory code could not be written because it would ossify or petrify them: E A Forsey, “The Present Position of the Reserve Powers of the Crown” in Evatt and Forsey on the Reserve Powers (1990) at xxxiii.
55 This is borne out by the way most authors present these two points of view in their description of various constitutional crises. We have not, however, found any authors who explain this point of view in terms of the disputatious nature of the rule itself. See, eg, E A Forsey, above n 54; H V Evatt, above n 54; P Hanks, above n 52.
56 P Keating, above n 1 at 9. The role. of the Head of State if the Senate exercises its power to block supply is another important issue raised by proposed changes to the power of the Head of State. The Keating Government's proposal leaves this vexed question in abeyance and this paper will do likewise. Again, this topic moves beyond the scope of the potential crises discussed in this commentary.
57 See Marbury v Madison 1 Cranch 137 (1803), where the Supreme Court of the United States relied on a textual justification as a key rationale to establish its power of judicial review of the American Constitution.
58 Professor George Winterton has contended that such a provision could be included in the Constitution: see G Winterton, “A Constitution for an Australian Republic”, Independent Monthly (Sydney), March 1992, 1 at 9.
59 Office of the Prime Minister, above n 6 at 12; P Keating, above n 1 at 10.
60 For a scholarly discussion of the justiciability of conventions, see G Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (1984) -at 12-18, and P Hanks, above n 52 at 342ff.
61 We believe that the role of the President is best described metaphorically and functionally
62 Many scholars agree that “the basic rules of responsible government should be more clearly stated in the Constitution”: J McMillan, G Evans, H Storey, Australia's Constitution: Time for Change? (1983) at 213; S Encel, D Home and E Thompson (eds), Change The Rules! Towards a Democratic Constitution (1977); Howard, Australia's Constitution (1978). See also the Report of the 1987 Constitutional Commission (1987); E Thompson, “A Washminster Republic” and C Sharman, “Reforming Executive Power” in G Winterton, We, The People,above n 22 at 97 and 113 respectively.
63 At Federation, the terms “Governor-General in Council” and “Governor-General” had no real constitutional significance. The Crown could not perform an executive act except on ministerial advice. Furthermore, the allocation of some powers to the Governor-General in Council and some to the Governor-General alone is the result of an oversight. According to Quick and Garran, these two categories are “historical and technical, rather than practical or substantial”:The Annotated Constitution of the Australian Commonwealth (1901, reprinted 1976, at 707 and 406). See also The Final Report of the Constitutional Commission (1988) at 316, 341 and 344; P Hanks, above n 52 at 329 ff. The Keating Government's proposal clarifies the position as at Federation. To this extent, it is a minimal proposal. However, this clarification also has implications f r how the Head of State might act in a constitutional crisis. These are discussed above.
64 See, eg, Australian Constitutional Commission, Background Paper no 13: Fixed Term Parliaments (1987); Australasian Study of Parliament Workshop, Fixed Term Parliaments (1982) and C Howard, Fixed Term Parliaments (1981). For example, s 4 of the Constitution (Fixed Term Parliaments) Act 1991 (NSW) fixed 25 March 1995 as the date for the next general election unless the Parliament was previously dissolved in accordance with the Act.
65 Note also that the Governor-General may return a Bill to the originating House while recommending amendments (Commonwealth Constitution, s 58).
66 See G Winterton, “Presidential Power”, above n 22 at 42.
67 Much of our discussion of potential presidential powers draws on the insight of Professor G Winterton: G Winterton, “Presidential Power”, above n 22 at 49-53.
68 Ibid at 47.
69 Ibid at 44.
70 Ibid. It is likely that the Head of State's failure to follow constitutional procedures would be subject to judicial review. See Cormack v Cope (1974) 131 CLR 432, where the High Court recognised that it has jurisdiction to intervene in the legislative process to ensure compliance with the procedures ins 57, but declined to do so. In the PMA case (1975) 134 CLR 81 at 155, Gibbs CJ dealt with circumstances where the Court may intervene in the legislative process. Nonetheless, these procedures could be made non-justiciable by recourse to Professor Winterton's proposal. See also G Winterton, Monarchy to Republic: Australian Republican Government (1986) at 46.
71 G Winterton, “Presidential Power”, above n 22 at 44.
72 Ibid.
73 Ibid.
74 See R Dahl, above n 24, ch 2; J Warden, above n 22 at 84.
75 See M Lake, above n 22 at 33.
76 Ibid.
77 P Keating, above n 1 at 4.
78 This proposed mode of appointment draws on suggested methods of enhancing the
impartiality of judicial selection: S Shetreet, “Who Will Judge: Reflections on the Process and Standards of Judicial Selection” (1987) 61 ALJ 766 at 776; s Cooney, “Women and Judicial Selection: Should There Be More Women on the Courts?” (1993) 19 MULR 20 at 21.
79 S Shetreet, n 78 at 777; D Pannick, Judges (1987) at 59; S Cooney, above n 78 at 21.
80 S Shetreet, above n 78 at 776.
81 S Cooney, above n 78 at 22.
82 Ibid
83 Ibid.
84 One question is whether the High Court could review this mode of appointment. If it was incorporated as a procedure it would probably be open to judicial review. See also Cormack v Cope (1974) 131 CLR 432 and the PMA case (1975) 134 CLR 81 at 155per Gibbs CJ.
85 Even if a President is to be popularly elected it should be possible to create a non-executive President provided there is anappropriate distribution and restraint of power. We are grateful to Dean Michael Crommelin for drawing this point to our attention. Perhaps the model suggested above might provide a useful allocation and restraint of Presidential power. A contrary view has been expressed by G Maddox, “The Possible Impact of Republicanism on Australian Government” in G Winterton, We, The People, above n 22 at 136.