1 Many histories lie across the contemporary Australian landscape. The oldest of them stretches back 40 millennia. It is told in the Dreamings, songs, traditions and ceremonies of indigenous Australians. The second history is that of the British colonizers. It began formally on 26 January 1788 when Arthur Phillip annexed the eastern half of Australia in the name of the British Crown. It continued with successive annexations of the rest of the continent by Britain, the evolution of the colonies into self-governing polities, and their union in a Federal Commonwealth in 1901. After Federation and predominantly in the second half of the twentieth century, there followed a wave of new histories, those of the many people of non-British origin who migrated to this country from all parts of the world. Some sought refuge from oppression and persecution. They brought with them a rich diversity of cultural heritage. Nearly one quarter of the people living in Australia today were born overseas. Forty three per cent of Australians were either born overseas or have at least one parent who was born overseas. In recent years migrants to Australia have come from over 180 different countries.[1]

2 Taken together, these histories belong to all Australia and taken together they define us. The Constitution which governs us all has given us the priceless benefit of the hard-won wisdom and experience of a system of democratic government, a structure to protect the rule of law and the freedoms and opportunities which that offers to all. Despite the sometimes trenchant criticisms that are properly made of government and its institutions, Australia has one of the most durable and successful democracies in the modern world. But it is rooted in the history of Australia’s British colonizers and their descendents. It took its legal authority from an Act of the British Parliament passed in 1900. It is with the assent of the Queen of Great Britain in her capacity as Queen of Australia, through her representative the Governor-General, that Parliament’s laws come into effect. It is in the name of the Queen that the executive power of the Commonwealth is exercised. The Constitution we have is inescapably the product of one history. The convergence of our many histories, that of our ancient indigenous peoples, that of the British settlers and those of the migrants of the past 50 years from many parts of the world, should open our minds to a larger idea of what it can be. That idea would see it as a text deriving its authority from the people and supporting institutions of government in which all the people have a sense of ownership. A powerful symbol of those histories that authority and that ownership would be constructed by a preamble acknowledging popular sovereignty, pre-existing indigenous culture and history and the diverse origins of the people who make up modern Australia. It would be personified by a Head of State elected by those people or by their representatives.

3 This lecture is offered in honour of the late Sir Ronald Wilson, who dedicated his life to the service of the State, the Commonwealth and the Australian community and particularly its indigenous members. It is entitled “Dreams of a New Republic”. The dreams are not new. The debate has been joined for many years. But beyond the dreams we need a clear vision of the values which we want to inform a Republican Constitution and the essential elements to give effect to them. In this lecture I wish to identify some key values and elements for which I think we should look. There will undoubtedly be, in this audience and the wider community, a variety of visions. It is important however, that we continue the debate about the basic values and essential elements to try to forge some kind of consensus to drive the change which is inevitable.

4 The debate cannot take place in a vacuum. It is necessary to have an understanding of what came before the Constitution, how it was made, its important features and the role of the Crown under it. It is necessary to understand how it marginalized indigenous people and the partial correction made to it in that respect in 1967. It is necessary to recognise that it is a federal Constitution and that each of the States has its own Constitution. In each of them the Crown is central to the exercise of legislative and executive power. It is also important to understand that Australia’s independent nationhood did not spring into existence upon Federation in 1901. It has evolved. The most recent stage in that almost complete evolution occurred with the enactment of the Australia Acts in 1986. It will not be complete until we have a Republican Constitution authorised and owned by the Australian people of the 21st century.

The oldest history – forgetting, recognition and apology

5 Before colonists and before constitutions the indigenous people of Australia occupied the land for more than 40,000 years. There may have been 300,000 or so on the continent when Arthur Phillip annexed New South Wales to the British Crown in 1788. State census figures at Federation only accounted for 93,333. Today there are over 517,000 representing 2.5% of the total population.[2] For a time they were the first people to be called “Australians”, a term apparently applied to them by Mathew Flinders in 1802/1803.[3] But their traditions and customs, their complex cultures and their connection to land were invisible to the law. So too was their humanity to many of the settlers. In 1901 May Vivienne’s book “Travels in Western Australia” was published. She told the story of an incident in the 1840s when a posse of settlers from the Bunbury area went looking for an Aboriginal man who had killed a white settler. The posse received no assistance from local Aborigines. Ms Vivienne recounted that they tracked the killer as well as they could and to frighten the tribe they shot down every native they came across. It is her comment on this incident, reflecting the perspective of a genteel middle class woman at the time of Federation that was particularly chilling:

The shooting of the blacks although it seems cruel, was the means of showing them that the white man was their master and after that no more trouble arose with the various tribes. Had it not been done the tables would have been turned and all the white settlers may have been murdered.[4]

6 The Supreme Court of New South Wales in 1833 described the Aboriginal people of the Colony as “wandering tribes … living without certain habitation and without laws …”.[5] In 1889 the Privy Council set its own seal of approval on a view of history that barred recognition of Aboriginal law and custom in Australia. Lord Watson said of the colony of New South Wales that it was:

… a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions.

Thus the British Law Lords wrote into Australian law a view of indigenous societies in this country not overturned until the Mabo decision in 1992. As Gummow J of the High Court said in the Wik case in 1996:

… the gist of Mabo (No 2) lay in the holding that the long understood refusal in Australia to accommodate within the common law concepts of native title rested upon past assumptions of historical fact, now shown then to have been false.[6]

The common law view of our history and that of our indigenous people changed in 1992 and as Justice Gummow said:

To the extent that the common law is to be understood as the ultimate constitutional foundation in Australia, there was a perceptible shift in that foundation, away from what had been understood at federation.[7]

7 The legal blindness that remained until 1992 could be linked to what WEH Stanner in the ABC Boyer Lectures in 1969 referred to as the “cult of disremembering” or “the great Australian silence”. By that he meant a denial of the history of Australia’s treatment of its Aboriginal people and failure to acknowledge that history.[8]

8 The history which was forgotten re-emerged amidst great debate and acrimony in the so-called history wars. Recognition has now been accorded to past wrongs and injustices. Whatever criticisms may be made of it an important part of the process of recognition was associated with the “Bringing them Home Report” prepared by Sir Ronald Wilson.

9 On 13 February this year the Prime Minister proffered in Parliament an historic Apology to Australia’s Indigenous Peoples. He began that Apology with a statement of recognition “… today we honour the indigenous people of this land, the oldest continuing cultures in human history”. He concluded it with a call for all Australians “to embrace with pride, admiration and awe these great and ancient cultures we are blessed … to have among us”. If that statement of a national commitment be accepted, then no Republican Constitution would be complete that does not explicitly acknowledge in its Preamble the special place of Aboriginal indigenous people. Their history is inescapably part of ours. A Republican Constitution would also continue, but in an improved way, the power conferred the Commonwealth Parliament by the 1967 Referendum to make laws for Australia’s indigenous people. That provision requires improvement for two reasons. One is to do with eliminating the possibility of laws which discriminate against people of any race in Australia. The other is to ensure that the power is exercised for the benefit of Aboriginal people, albeit the judgment as to what is beneficial should remain a matter for the parliament.

The 1967 referendum – an unfinished work

10 In 1967 the Australian people amended the Constitution so that the Commonwealth Parliament could make laws for Aboriginal people. It was a great expression of popular goodwill and the culmination of an intense campaign. But the alteration was flawed. The way it worked was this. Before the 1967 amendment, the Constitution gave power to the Commonwealth Parliament to make laws with respect to “the people of any race other than the Aboriginal people in any State for which it is deemed necessary to make special laws”. That power, which was included in the Constitution at Federation, authorised laws discriminating against people of particular races. In theory it could also allow for beneficial laws. But it was not so intended by most of the delegates who spoke about it in the Convention Debates in the 1890s. It was underpinned by social Darwinism informing attitudes to “other races” and the white nationalism which was an important driving force bringing about Federation. The reason it did not cover Aboriginal people had nothing to do with a benevolent attitude towards them. Rather it reflected the desire of the colonies, which became the States of the Commonwealth, to retain legislative control of their affairs.

11 The 1967 amendment extended the race power to cover Aborigines. The amendment was beneficial in spirit but was grafted onto a power capable of being used to make adversely discriminatory laws. Both symbolically and practically it was an inadequate expression of the goodwill that brought it about. Any Republican Constitution that properly addresses the place of indigenous people in Australian society will have to do better.[9] Nor can it countenance the retention of a power that permits Parliament to discriminate against people on the basis of their race. As one of Australia’s great constitutional scholars Professor Geoffrey Sawer warned, before the 1967 amendments:

Having regard to the dubious origins of the section, and the dangerous potentialities of adverse discriminatory treatment which it contains, the complete repeal of the section would seem preferable to any amendment intended to extend its possible benefits to the Aborigines.[10]

The race power as it presently stands is an affront to Australia’s diversity. It was inspired by particular views of human difference extant in 1900. A key element of any Republican Constitution should be its repeal and replacement with a power to make laws for the advancement of Aboriginal and Torres Strait Islander people. Such a provision would not itself be racist but rather reflect in a practical way the special position of Australia’s indigenous people in its history and polity as well as the need to take special measures to deal with the huge damage inflicted by the collision between their history and that of the British settlers.

12 It is now helpful to consider briefly how the Australian Constitution emerged from the history of the British settlers. We begin with the making of the colonies which led eventually to the process of Federation.

The making of the Australian colonies – a British history

13 After Britain lost its American colonies in the War of Independence, the proposed colony of New South Wales on the eastern side of the Australian continent was designated as a place to which British convicts might be transported.[11] Arthur Phillip was commissioned by the British Government on 12 October 1786 as Governor of the proposed new colony and arrived at Sydney Cove on 26 January 1788. This was the same year that 13 American colonies voted on the Constitution of the United States.

14 Governor Phillip brought with him 717 convicts. New South Wales at that time covered all of Australia east of the 135th meridian together with adjacent islands.[12] The first appointed local legislative body was created in 1823 and a Supreme Court established. Tasmania was carved out of New South Wales as a distinct colony in 1825. In 1842, by an Act of the British Parliament, the Australian Constitutions Act 1842 (UK) a representative Legislative Council for New South Wales was created.

15 In 1849 a Committee of the Privy Council reported to the British Parliament on the constitutional position of the Australian colonies. This led to the enactment of the Australian Constitutions Act 1850 (UK). By that Act the British Parliament gave authority to colonial legislatures to make and alter their own constitutions. The Act also provided for the Colony of Victoria to be separated out from New South Wales. That took effect in January 1851.

16 A Legislative Council was established in Tasmania in 1854 and passed a Constitution Act for that colony in that year. Constitutions were authorised by the United Kingdom Parliament for New South Wales and Victoria in 1855. That authority was necessary because the proposed constitutions coming out of the colonial legislatures conferred powers which had not been conferred by the Australian Constitutions Act 1850. These constitutions adopted a framework of responsible government.

17 In 1859 Queensland was created out of New South Wales as a separate colony. It was created by an Order in Council under the Australian Constitutions Act 1850 (UK). The Order in Council was very similar to the 1855 New South Wales Constitution. In the meantime, in 1834, South Australia had come into existence as a province by direct Imperial Statute and in 1851 a representative government was established there. The South Australian Constitution Act 1855 was passed by the South Australian Legislature.

18 Western Australia was never part of the colony of New South Wales. It was established as a distinct colony in 1829 by an Imperial Statute, The Swan River Colony Act. It achieved representative government in 1890 after the authorisation of the Constitution Act 1889 (WA) by another Imperial Statute. It set up a bicameral legislature including a nominated Legislative Council which was replaced by an Elective Council in 1893. A Constitution Act 1899 passed by the Western Australian parliament consolidated the earlier enactments.

19 At the end of the 19th century Australia was not a sovereign State. It was a collection of colonies. The legal authority of the Constitutions of those colonies depended upon Acts of the British parliament. They were subject to legislation by that parliament. They did not have any legal personality able to be recognised at international law. Professor Leslie Zines summed up the situation in the late 19th century thus:

The colonial parliaments and ministers were to be left to manage matters of merely local concern without interference from the Imperial authorities. Generally speaking in all such matters the Governor was to act on the advice of the local ministers who in turn were responsible to the Colonial Parliament. In all matters affecting foreign nations or other parts of the Empire, the Imperial Government and Parliament alone were responsible.[13]

It was against this background that the formation of the Australian Constitution began.

The making of the Australian Constitution

20 The movement to the Australian federation was begun by British colonists in the last decade of the 19th century. Concerns about foreign affairs, immigration, defence, trade and commerce and industrial relations motivated that movement. They were worried about the colonising activities of France and Germany in the area. These matters could not be dealt with by six separate colonial governments. The move to federation was not a move to independence from Great Britain. There was no desire to assert against government generally, or the British Government in particular, rights and freedoms for colonists. The rights they debated were largely those of the individual colonies as proposed States against the proposed Commonwealth Government.

21 There was also at the time a perception of people or race embedded in the idea of nationality. Indeed Australians of the 19th century used the term “people” and “race” interchangeably.[14] One of the founding fathers of the Australian Constitution, Henry Parkes, put it rather floridly in 1890:

The crimson thread of kinship runs through us all.

22 Representatives of the colonies met in Conventions on several occasions in the 1890s to discuss and formulate an Australian Constitution. They adopted a draft in March 1898. Referenda were held and the draft Constitution was approved by a majority of people in a majority of colonies. But that approval did not have legal force. The Constitution Bill had to be enacted by the United Kingdom Parliament in order for it to take effect for Australia. Eventually the Bill was passed and on 9 July 1900 received the Royal Assent. A proclamation establishing the Commonwealth of Australia was signed by Queen Victoria on 17 September 1900 to take effect from 1 January 1901.

23 The Australian Constitution came into existence as a section of an Act of the British Parliament. The Preamble to that Act asserted that the agreement which preceded it was an agreement of “the people”. It read as follows:

WHEREAS the people of New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established:

AND WHEREAS it is expedient to provide for the admission into the Commonwealth of other Australasian Colonies and possessions of the Queen:

Be it therefore enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the Lord’s spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows: …

Western Australia was not mentioned in the Preamble as it was a late and somewhat reluctant member of the Federation. However it did join before the Constitution came into effect. The agreement of the people was recited as an historical fact which preceded enactment of the Constitution by the British parliament. In this respect the Australian Constitution differs from that of the United States which, from the outset, expressly drew its legal authority directly from the people. The United States Constitution opens with the words:

We the people of the United States … do ordain and establish this Constitution for the United States of America.

In similar mode the Constitution of India recites that “… the people of India …, do hereby adopt, enact and give to ourselves, this Constitution”.

24 The agreement underpinning the Australian Constitution fell far short of an agreement by all the people then living in Australia. The franchise applicable to the referendum was limited by reference to gender and property and, in some cases, by race. In Victoria, New South Wales, South Australia and Tasmania Aboriginal men were allowed to vote but in Queensland and Western Australia they were not able to do so unless they were freeholders.[15] Only Western Australia and South Australia had the franchise for women in 1900. Their women voted in the referendum but none from the other colonies.[16]

25 Federation was a great achievement and the Constitution has served Australia well. But it was the work of white males of British origins. They brought to the drafting process world views shaped by their history and cultural heritage as British settlers and the descendents of British settlers.

26 There was much in the Constitution of which its drafters could, even at this historical remove, be proud of. It provided a framework for democratic government and for the rule of law with a degree of flexibility which allowed it to continue to function well beyond the horizon of their own time and vision. Over a century after it was enacted, it is a Constitution confined to some degree by the limits of the world view of its drafters. The political culture of Australia has moved a long way. It is time to update. There are significant areas of the Constitution that need renovation, particularly those dealing with Federal and State relationships so that Australia can function adequately in a radically different global environment. Movement to a Republic is, in a technical sense, a small step in that process. It is however of considerable symbolic and practical importance in restoring what seems to be a diminishing community engagement with and faith in the institutions of government. There is a need for an express acknowledgement in the Constitution that it derives its authority from the Australian people, rather than from the British parliament. There is a need for the Head of State to have the legitimacy of a democratic choice. To understand the need it is necessary to consider briefly the legal nature of the Constitution.

The legal nature of the Australian Constitution

27 The origin of the Australian Constitution as an Act of the Imperial Parliament raises questions about its legal nature. Is it to be regarded always as a statute which draws its legal effect from its enactment in 1990 by the legislature of the United Kingdom? Or is it to be regarded today as drawing its legal effect from the agreement and ongoing acquiescence of the people?

28 The proposition that the Constitution is a statute deriving its authority from the United Kingdom parliament has been powerfully supported by the High Court. In a frequently quoted observation made in 1935, one of Australia’s great jurists of the 20th century, a former Chief Justice of the High Court, Sir Owen Dixon, described it thus:

It is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament enacted in the exercise of its legal sovereignty over the law everywhere in the King’s dominion.[17]

29 In the last quarter of the 20th century and subsequently, there has been an ongoing debate about whether the legal authority of the Australian Constitution still has to be traced back to the British Parliament. Does it now in effect, derive its authority from the assent of the people? The late Justice Murphy challenged the orthodoxy in 1976 in the High Court when he bluntly stated:

The United Kingdom parliament ceased to be an Imperial Parliament in relation to Australia on the inauguration of the Commonwealth…

He declared that even if the original authority of the Constitution had been the Imperial parliament, its existing authority “… is its continuing acceptance by the Australian people”. At the time he made that statement he was a lone voice on the High Court.[18]

30 Those who argue that the Australian Constitution as it is today rests upon popular sovereignty, point to a number of factors. One is the electors’ approval of the draft Constitution in 1900. Another is the fact that the people have accepted the Constitution peacefully for over a hundred years. Another is s 128 of the Constitution which requires that any amendment to it be approved by the electors. None of these factors however displaces the legal theory that the Constitution’s legal authority still derives from that of the British Parliament.[19] There have been statements in the High Court in more recent times supportive of a theory of popular sovereignty but these have not crystallised into a solid majority of the Court.

31 The Preamble to the Constitution stands against the proposition that it is or ever was based on the authority of the people. The people, it says, have agreed to unite “in one indissoluble Federal Commonwealth and under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established”. Unity under the Crown of another country is not an indicator of legal power emanating from the people.

32 It was Queen Victoria who, by s 3 of the Commonwealth of Australia Constitution Act proclaimed the Constitution into existence. It was s 5 of the Imperial Statute, The Commonwealth of Australia Constitution Act which gave the Constitution its legally binding effect:

This Act and all laws made by the Parliament of the Commonwealth under the Constitution, will be binding on the courts, judges, and people of every State and of any part of the Commonwealth …

There are few, if any, clear supports in the Constitution for the argument that it derived its legal authority from the people or does so today.

33 Having said that, the laws made under the Constitution by parliamentarians elected under a universal adult franchise can claim their legitimacy and authority from the fact that they are made by the peoples’ representative. There remains however the legally necessary requirement that the Governor-General on behalf of the Queen, as Queen of Australia, assent to those laws. And it is in the name of the Queen, as Queen of Australia, that the executive power of the Commonwealth is reposed in the Governor-General even though as a practical matter it is exercised by Ministers of the Crown.

34 There can be no personal reflection upon the way in which Her Majesty Queen Elizabeth has discharged the function of Queen of Great Britain and Queen of Australia in her long reign. She has served the Australian people well. That said, it is unacceptable in contemporary Australia that the legal head of the Australian State, under present constitutional arrangements, can never be chosen by the people or their representatives, cannot be other than a member of the Anglican Church, can never be other than British, and can never be an indigenous person. Our nationhood is not complete until the change to a Republic is made. Our evolution to nationhood has been a step-wise process. The most recent step was taken in 1986. The formation of a Republic is a step yet to be taken.

Australia ’s evolution to independent nationhood

35 It is widely accepted that Australia did not become an independent nation in the full sense of that term upon the creation of the Commonwealth on 1 January 1901. Rather it came into existence and entered the 20th century as a self-governing colony of the United Kingdom. Indeed the United Kingdom parliament had continued power to legislate for Australia. Australia remained subject to paramount British legislation.

36 Australia lacked executive independence in the conduct of its foreign relations at the time of federation. These were carried on through the British government. Eventually that executive independence was recognised for all Dominions at an Imperial conference held in 1926. The resolutions passed at that conference were sufficient “… to secure the independence of Dominion executives, in the conduct of both domestic and foreign affairs”.[20]

37 Legislative independence from Great Britain did not come to pass until the adoption by the Australian Parliament in 1942, retrospective to 1939, of the Statute of Westminster 1931 (UK). That was a British statute which gave effect to the wishes of Dominions to lift the fetters on their legislative powers imposed by the Colonial Laws Validity Act 1865 (UK). The statute also affirmed the powers of Dominion parliaments to make laws having extraterritorial effect. It repealed the Colonial Laws Validity Act 1865 in relation to Dominion laws. That Act continued to apply to the States of Australia until 1986.

38 Even after the Statute of Westminster it remained theoretically possible for the United Kingdom parliament to make laws affecting Australia. The position with respect to the States was bizarre. As Professor Anne Twomey has pointed out, independence granted to the Dominions at the national level by the Statute of Westminster, did not apply to the Australian States:

State Governors continue to be appointed by the Queen on the advice of British (rather than State) Ministers. When State laws were reserved for the Queen’s assent, it was British Ministers who advised her whether or not to assent. The Colonial Laws Validity Act still prevented the States from legislating in a manner that was “repugnant” to British laws of paramount force. British laws on such subjects as merchant shipping and the reservation of certain Bills for the sovereign’s assent continued to apply by paramount force to the States. Despite forming part of an independent Federation, the Australian States were regarded by the British government as “colonial dependencies of the British Crown” and, when the Queen performed State functions (such as the appointment of a governor), she acted as the Queen of the United Kingdom rather than the Queen of Australia.[21]

39 The final severance of the legislative and executive umbilical cord between Australia and the United Kingdom did not occur until 1986 with the passage of the Australia Act 1986 (UK) by the United Kingdom parliament and the corresponding Australia Acts of the Commonwealth and the State parliaments. It was then also that the last vestige of judicial dependence disappeared. For until 1986 a litigant in a State Supreme Court could seek leave of that Court to appeal to the Privy Council in England against decisions of the Supreme Court. Although such appeals were not permitted where they involved matters arising under the Constitution or involving its interpretation, there were, for many years, effectively two final appellate courts for Australia, the High Court and the Privy Council.

The shape of the Australian Constitution

40 Section 9 of the Commonwealth of Australia Constitution Act sets out the text of the Constitution. The Constitution has eight chapters which deal with the following topics:

Chapter 1 – The Parliament

Chapter 2 – The Executive Government

Chapter 3 - The Judicature

Chapter 4 – Finance and Trade

Chapter 5 – The States

Chapter 6 – New States

Chapter 7 – Miscellaneous

Chapter 8 – Alteration of the Constitution

41 The law-making power of the Commonwealth is vested in the Commonwealth Parliament which consists of “… the Queen, a Senate, and a House of Representatives”. The Queen is represented by a Governor-General appointed by her. As a matter of convention the Governor-General is appointed only upon the advice of the Prime Minister. The Governor-General in practical terms is Australia’s ceremonial Head of State, although in a formal sense he or she represents the Queen of Australia. The Governor-General has a variety of powers under the Constitution. They include the assent and withholding of assent to legislation, the appointment and dismissal of parliaments and the appointment of ministers.

42 Chapter 2 of the Constitution deals with the Executive Government. The key provision of that chapter is s 61 which provides:

The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth.

By s 63 of the Constitution and otherwise by convention the Governor-General acts upon the advice of the Federal Executive Council and Australian Ministers of the Crown. The Federal Executive Council is established under s 62 of the Constitution. Section 61 and the accompanying provisions effectively locate executive power in the Ministers of the Crown.

43 In speaking of the Australian Constitution it is also necessary to have regard to the Constitutions of each of the Australian States. These trace their legal ancestry back to the pre-federation constitutions of the self-governing colonies. They derived their legal force from Imperial Statutes which either authorised their enactment or directly enacted them. Those Constitutions were continued in force by s 106 of the Australian Constitution. They provide, as it does, for legislative, executive and judicial arms of government although they are considerably easier to amend than the Australian Constitution. In each of them the Queen, through her State Governors, is part of the legislature and the Ministers are Ministers of the Crown.

Amending the Constitution

44 Amendment of the Australian Constitution has never been an easy matter. Absent a general political consensus it has been well nigh impossible. The adoption of a Republican Constitution would require amendment of the present Constitution according to the requirements of s 128. It requires a proposed amendment to be passed by an absolute majority of each of the House of Representatives and the Senate and submitted to the electors in each State and Territory not less than two months, nor more than six months, after its passage through both Houses.

45 If, in a majority of States, a majority of the electors voting approve the proposed amending law and if a majority of all electors (including those in the Territories) approve it, then “… it shall be presented to the Governor-General for the Queen’s assent”. There is no reason to suppose that that assent would be withheld against the will of the Australian people.

46 There would be technical issues to be addressed. The present Constitutional Preamble appears in the Imperial Act which gave effect to the Constitution. It does not appear in the Constitution itself. An amendment to create a new Preamble would presumably insert it at the head of the Constitution itself. It is doubtful that the covering clauses of the Constitution, namely the provisions that appear in the Imperial Act would require amendment to effect a Republican Constitution. Any such change would raises some interesting and perhaps difficult technical questions.

47 In broad terms, apart from the Preamble, it would be a minimum requirement of the amendments that references to the Queen and to the Governor-General as her representative, be removed from the Constitution. While it would be possible to retain the term “Governor-General” to describe the Head of a Republican State, it is likely that its historical association with the constitutional monarchy would render that title unacceptable. The most obvious substitute is “President”. Amendment would have to address the question of the appointment of the President and whether that is to be by a process of direct or indirect election or appointment by some other means. The powers of the President would have to be considered but, particularly if he or she is an elected President, defined and limited. The President as Head of State should not become a second centre of political power.

48 In the move to a Republican Constitution the position under State Constitutions will also have to be considered. It would be a bizarre dichotomy indeed to have a Republican nation with one or more of its States operating under a monarchical constitution. One approach might incorporate in the amendment to the Commonwealth Constitution an amendment to s 106 to alter State Constitutions so that the Governor of the State would be appointed by the Premier or Parliament of the State and would otherwise carry out all the functions presently carried out by State governments. There are, however, technical issues which would have to be addressed and, in particular, the interaction between the Australia Act 1986 (UK) and s 128 of the Constitution. If the wishes of the people can be expressed in some form of preliminary plebiscite as proposed in the 20/20 Summit and a sensible political consensus reached to give effect to their wishes, then it is likely that agreements will be made which would ensure a republican system throughout the Commonwealth.

Preamble for the people

49 A Constitutional Preamble may serve many purposes. It may be little more than a piece of ornamental rhetoric preceding the substance of the Constitution. Alternatively, it may have powerful words to say about the links of the Constitution to the people, its historical origin and fundamental principles enshrined in the Constitution itself. Most modern constitutions have preambles.

50 It is important in drawing a preamble to avoid both divisive debate about values and the possibility of unintended legal consequences for the interpretation of the Constitution itself. Professor George Winterton has proposed a number of principles to be followed in framing amendments to our Constitution. He proposes:

1. The existing Preamble be retained as far as possible for the sake of constitutional continuity and social harmony. For this reason he contends that it should retain the reference to “Almighty God” as the removal of that reference would open deep community divisions.

2. The Preamble must be honest. It should not assert that certain rights are constitutional protected if they are not.

3. It should be expressed in succinct and pithy prose avoiding jargon and platitude.

4. Only the most fundamental, uncontroversial and universally accepted principles and values should be recognised. It should not read like a catalogue of political correctness.

5. The Preamble should avoid provisions likely to have legal effect. Their place is in the body of the Constitution. Nevertheless it will inevitably be employed in constitutional interpretation and possibly in the development of the common law and should be framed with this in mind.[22]

51 Professor Winterton’s suggested Preamble, built upon the existing Preamble, would read as follows:

WHEREAS the original, indigenous Australians held in trust this continent of which all Australians are now trustees

AND WHEREAS the people of New South Wales, Victoria, South Australia, Queensland, Tasmania and Western Australia, humbly relying on the blessing of Almighty God, agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland and under the Constitution hereby established

AND WHEREAS that Federal Commonwealth, the Commonwealth of Australia, evolved into an independent nation under the Crown of Australia:

AND WHEREAS the people of Australia have decided to constitute the Commonwealth of Australia as an independent Federal Republic founded upon democratic government, the rule of law and the equality of all citizens before the law, and dedicated to the principle of the equal worth and dignity of every human being:

WE, the people of Australia, do hereby enact and give to ourselves this Constitution.

52 Professor Winterton sets out a variety of alternative suggestions which have been made by a number of people for a Republican Preamble. In my respectful opinion his proposal brings to bear on the development of a Republican Constitution all of the necessary elements save a reference to our diversity. The fundamental democratic principles which it enunciates would, I think, be acceptable to an overwhelming majority of the Australian people. That, however, would be tested in any referendum. The reference to diversity would be achieved by amending the first recital to read:

WHEREAS the original indigenous Australians held in trust this continent of which all Australians, originating from many lands, are now trustees.

53 The only issue of a technical character is whether s 128 of the Constitution would authorise amendment of the Preamble which appears in the United Kingdom Statute which gave effect to the Constitution. In my opinion, it would be possible simply to insert the proposed new Preamble as part of the Constitution without worrying about the terms of the Preamble as it appeared in the original Act. An important feature of the last words of the proposed Preamble would be an acknowledgement that the Constitution is henceforth to be treated as deriving its authority from the people.

The Head of State

54 There has been much debate about the way in which a Head of State should be chosen under a Republican Constitution. Many models have been put forward. It would be foolish to be dogmatic about the means of selection. There are advantages, disadvantages and difficulties attending each of the models that has been argued.

55 Starting from first principles, the model must be one which recognises the authority of the people of Australia as the legal foundation of its Constitution. The selection of the Head of State will therefore accord as closely as possible with democratic principle. There are various ways in which that may be achieved. That most in accord with democratic principle and therefore most likely to have the support of the people is direct popular election. An alternative is an indirect election in which the people vote for some form of electoral college of representatives from each State to themselves choose a Head of State. Another alternative is to create an electoral college composed of members of the Federal and State parliaments. These latter mechanisms move successively further away from direct popular involvement.

56 Professor Cheryl Saunders in a paper which extensively reviewed the 1999 Republican Referendum, pointed to the failure of the delegates at the Convention which preceded the Referendum to take seriously the public preference for a directly elected president. The model they put forward required appointment of the Head of State by a majority of both Houses of Parliament voting on a single name submitted by the Prime Minister and seconded by the Opposition Leader. The Prime Minister, before submitting the name, would be required to take into account a short list compiled by a Presidential Nominations Committee from suggestions provided by members of the public. Under that model the Prime Minister also had the power to remove the President from office subject to ratification by the House of Representatives within 30 days unless an election was to follow. A State Governor would act as Deputy for the time being if the President were removed.[23]

57 The option of a directly elected president requires more alterations to the Constitution than the minimalist approach taken by the 1999 proposal. But as Professor Saunders says, it is a public preference which has to be taken seriously.

58 There are a number of issues to be considered in proposing a directly elected president. The principal concern is that an elected president will necessarily be a politician with a popular mandate thus establishing a second centre of political authority capable of challenging that of the Prime Minister and so destabilising government. If it be assumed that the public preference is for a non-political Head of State along the lines of the existing Governor-General, then that preference has implications for the nomination process, the election process and the powers of the office.

59 First the nomination process. If any elector could nominate for election as President there could be a thousand candidates ranging from the sublime to the ridiculous and creating an unworkable burden for any electoral process. This suggests a need for some kind of qualification for nomination. That qualification might require nomination by a minimum number of electors sufficient to ensure that the candidate is a serious one. Additionally, or alternatively, nominations might be made by either a nominating electoral college in each State set up for the purpose (by election or otherwise) and a limit on the number of candidates that it could nominate. Another nomination pathway might be by a special majority of both Houses of a State Parliament or the Federal Parliament. There is a variety of mechanisms available for limiting the number of candidates able to stand for election as Head of State. It may be that there should be provision in the Constitution to permit amendment of the nomination process by statute within certain guidelines. That would allow a degree of flexibility and response to practical problems which might emerge from time to time without having to resort to a further constitutional amendment.

60 Given that the Head of State is to be above politics and to exercise only those limited powers conferred by the Constitution there would be little if any scope for campaigning for the office. A person standing for a position which does not carry with it political power should not be enunciating policies. This may require some mechanism which would effectively limit or render impracticable a campaign based on policy positions. It might be that the information able to be disseminated by or on behalf of the candidate would be limited to the candidate’s personal history, experience and qualifications. An associated limit on campaign expenditure could be imposed. It would be important to establish from the outset ways of maintaining the principle in the election process that the office sought would not be a political office. This would hopefully have the collateral benefit of attracting as candidates people with the qualifications, experience and community standing to discharge the office effectively but who would never want to become involved in a political campaign.

61 Notwithstanding those safeguards it would be necessary to limit and define the powers of the Head of State and the ways in which they are to be exercised. They should be directed to essentially the same functions as the Governor-General exercises under the Constitution at present but codifying or confining in some way the reserve powers which may presently be exercised without or against the advice of the government of the day. There have been a number of suggestions advanced about how this might be achieved.

62 Sir Gerard Brennan, a former Chief Justice of the High Court, has proposed various ways in which presidential power and its exercise might be defined and confined under the Constitution. In particular he suggested, in relation to the reserve powers, that there is a problem in foreseeing all the circumstances in which they might have to be exercised. He proposed the devising of a procedure which:

1. Sets out a general criterion for determining the occasions when a presidential power might be exercised without ministerial advice.

2. Provides an enforcement mechanism that reduces the role of judicial supervision to a minimum.

Under his proposal the exercise of prescribed powers of the President without, or contrary to, ministerial advice could only occur when the President was of the opinion on reasonable grounds that it was absolutely necessary to exercise such a power in order to ensure compliance with the general law or the effective working of parliamentary democracy in accordance with the law and custom of the Constitution. Associated with that Sir Gerard would establish a Constitutional Council to certify conclusively either that reasonable grounds exist for the President’s opinion or that it concurs in the President’s opinion.[24]

63 I mention this suggestion in passing and without exploring the costs and benefits associated with the various ways in which the powers of a directly elected President might be defined and confined. That is ultimately a matter for the constitutional and legal experts to work upon. If the clear public preference is for a directly elected President, then it is the responsibility of those with the relevant expertise to establish the mechanisms which will minimise the risks and difficulties associated with that preference. No alternative is without risk and in the end the Constitution will work if people of goodwill are willing to make it work. It is useful in this context to recall the words of Dr BK Ambedkar, one of the key draftsmen of the Indian Constitution in 1949:

However good a constitution may be it is sure to turn out bad if those who are called to work it happen to be a bad lot. However bad a constitution may be it may turn out to be good if those who are called to work it happen to be a good lot. The working of a constitution does not depend wholly upon the nature of the Constitution.

Conclusion

64 As a people we can afford to set our goals high in moving to a Republican Constitution. Those high goals would recognise the convergence of our many histories, and ensure that popular sovereignty is given legally effective recognition in the Constitution, recognise and make provision for the indigenous people of Australia. They would dispense with the power of the Commonwealth Parliament to make laws discriminating between people on the grounds of race and provide a mechanism for choosing the Head of State that accords with democratic principle and popular sovereignty. These are the dreams of a new Republic. It is not beyond our wit to bring them to reality.

Note: I express my appreciation to Bronwyn Lo and Anita Power of the Federal Court Research Directorate for their collection and summary of various helpful materials.