Craven, Greg --- "Conservative Republicanism, the Convention and the Referendum" [1998] UNSWLawJl 1; (1998) 21(3) University of New South Wales Law Journal 886

Conservative Republicanism, The Convention And The Referendum

GREG CRAVEN[*]

I. INTRODUCTION

One of the most interesting things about the recent Constitutional Convention and its preliminary skirmishes was the emergence of a number of distinct strands of Australian republican thought. Previously, antipodean republicanism had tended to be perceived as a single, more or less uniform entity.

Now, however, we realise that there are at least three orders of republican. Radical republicans favour dramatic change to the Constitution to secure the popular election of a president, who will in some sense be a salvator populi against the wiles of politicians. In the middle are the mainstream republicans, best represented by the Australian Republican Movement, who ardently desire dramatic change in Australia's constitutional symbols, but not in its substantive systems of government.

Finally, one encounters the conservative republicanism that is the subject of this article. Conservative republicans have more or less reluctantly embraced the Australian republic as inevitable, but are vitally concerned to ensure that the new republic clings as closely as possible to the underpinnings of its monarchical antecessor. Typically, they support the "McGarvie" constitutional council model for a republic.[1] This piece seeks briefly to analyse three areas of crucial concern to conservative republicans arising at and out of the Convention: general perceptions of Australian constitutional democracy; the fate of the Preamble to the Constitution; and the most appropriate reaction to the Convention's republican model at the 1999 referendum.

II. CONSTITUTIONAL DEMOCRACY

One of the most fascinating struggles within the Convention was a fundamental argument over the nature of constitutional democracy. This argument was rarely overtly articulated, but simmered beneath the surface of most of the more closely-fought controversies.

Traditionally, Australian constitutional politics has proceeded on the near universal assumption that while politicians are contemptible, Parliaments are sublime. However much we may despise the individual components of our legislatures, the idea of parliamentary government itself is beyond reproach. Indeed, we spend so much time devising elaborate schemes to rescue Parliament from the "Executive", that we tend to forget that the Executive is itself composed of parliamentarians.

One of the most noticeable features of the radical wing of republican thought in the Convention, however, was a profound disenchantment with the notion of parliamentary democracy as such. No longer was the verdict one of individual vice but institutional virtue. On the contrary, delegate after delegate inveighed not only against the despised politicians, but also against the legislatures which they compose. Consequently, the liberation of Parliament did not emerge as the primary goal of constitutional dissentients. On the contrary, the much expressed desire was for a constitutional organism that would protect us not only from the executive and the politicians, but from the debased Parliaments that harboured them. In a specifically republican context, the demand was for a directly elected president who would be the people's bastion against institutionally corrupt legislatures and executives alike.

In reality, this radical republican view goes to the heart of Australian constitutional democracy. That democracy is not, as is sometimes supposed, unadulterated in character. Rather, our democracy is fundamentally qualified, in that it is both "representative" and "parliamentary" in nature, so that the will of the people may not legitimately be expressed directly and immediately, but only through the prism of their constitutionally elected representatives, in whom legal authority actually resides.[2] This essentially conservative, British vision of democracy was directly confronted at the Convention by the spectre of a popularly elected president wielding popular power in defence of the electorate against its parliamentary representatives.

In real terms, this novel conception of Australian constitutional democracy divided the radical republicans as much from the republican mainstream of the Convention as it did from the more conservative delegates. Properly understood, their argument was with everyone who stood by a more traditional concept of Anglo-Australian constitutional democracy, according to which the will of the people is expressed not immediately but in a diffuse fashion through elected parliaments. Within this camp stood not only conservative republicans and monarchists, but also the mainstream republicans of the Australian Republican Movement, all of whom were broadly united in a defence of the concept of representative parliamentary democracy.

The implications of this radical rejection of parliamentary authority go well beyond the specific context of presidential election and powers. The same distaste for representative democracy undoubtedly underlies many of the more histrionic demands for a constitutional bill of rights, and for the courts themselves to create the equivalent by the simple expedient of judicial fiat. What the Convention exposed was a great gap between conservative and mainstream constitutionalism in Australia, and its radical opposite: a chasm between broad (if qualified) confidence in representative parliamentary government, and its rejection as a fraud upon the popular will and the rights of citizens.

III. THE PREAMBLE TO THE CONSTITUTION

At the Constitutional Convention, the Preamble to Australia's Constitution received what probably was its first close attention since its formulation in the 1890s. The factors prompting this unusual degree of scrutiny were not unrelated to the strong strand of radical democracy within the Convention which already has been discussed.

The difficulty for those Convention delegates who were proponents of more radical, but essentially non-republican measures of constitutional change - such as a judicially enforceable Bill of Rights - was that the Convention's agenda had been drawn up with some care precisely to preclude the discussion of such possibilities. Understandably, in view of the time constraints, this was to be a convention on the republic, and so much was heartily agreed between government, monarchists, and conservative and mainstream republicans alike.

In these circumstances, more radical republicans tended to turn to the Preamble as means of raising their concerns by, as it were, shouting through the backdoor. Thus, Preambles are characteristically vague and amorphous, and can be moulded to incorporate almost any concept. Better still, the Preamble to the Constitution inevitably would have to be debated by the Convention for at least two reasons. First, it contained monarchical references, the future of which would at least need to be considered; and second, virtually the whole Convention clearly believed that the Preamble needed to contain some reference to Australia's prior occupation by aboriginal people. The necessity of the Preamble thus was the opportunity of radical republicans.

The agenda of radical republicans was relatively obvious, if not overt. In essence, they proposed to stuff the Preamble full to bursting point with the rights and values that they would prefer to see contained within the substantive provisions of the Constitution. Thus, at various points, equality, democracy, the rule of law, multiculturalism and responsibility to future generations[3] all were hopeful candidates for inclusion in the Preamble. Half-hearted protestations to the contrary, it is perfectly clear that the constitutionally literate among the radical republicans had no illusions about the process in which they were engaged. They hoped that the inclusion of these rights and values in the Preamble might provide a right-minded High Court with a base from which to interpolate those concepts into the body of the Constitution.

Such a process was opposed, to varying degrees, by two quite different groups of relative constitutional conservatives. The Australian Republican Movement was desperately wary of these adventures, not necessarily because it was opposed to judicial activism as such, but because it rightly appreciated that opening up the issue of what essentially was a surrogate bill of rights during a referendum on a republic certainly would prove politically disastrous. At the same time, however, it did not wish to antagonise radical republicans, upon whom it was counting eventually to vote for its own model, with an outright rejection of their project.

Consequently, it was left to the more conservative republicans, mainly McGarvieists, to oppose dramatic extensions to the Preamble.[4] Their arguments were straightforward: in an age of increasing judicial activism in the constitutional sphere, the inclusion of vague, abstract values and rights would be an invitation to the judiciary to rewrite the Constitution in the Preamble's image. While many monarchists watched the sometimes vituperative battle between conservative and radical republicans over the Preamble with glee, and even were inclined to egg the radicals on towards referendum disaster, the Australian Republican Movement became increasingly nervous over the entire issue.

In the end, a tacit consensus was achieved between conservative and mainstream republicans to close down the debate over the Preamble by conceding the limited inclusion of certain abstract values, but negating this utterly by inserting into the Constitution a stark clause stating that these matters were not to be referred to by the Court for the purpose of interpreting the Constitution. Once this somewhat curious insertion had been made, radical republicans understandably lost interest in the Preamble as a vehicle for their constitutional aspirations, and the debate subsided, much to the relief of other republicans. Doubtless, however, the proposed changes to the Preamble will be resorted to by monarchists during their referendum campaign.

IV. CONSERVATIVE REPUBLICANISM AND THE REFERENDUM

The central position of what has been referred to here as `conservative' republicans - although the adjectives `reluctant' or `forced' also have been used - is that they are willing to contemplate an Australian republic so long as it represents merely an indigenous adaptation of Australia's highly successful constitutional monarchy. Such republicans probably fall into two broad groups: positive McGarvieists, who truly desire a republic along the minimalist lines proposed by former Victorian Governor, Richard McGarvie; and `default' McGarvieists who, while being ideological monarchists nevertheless accept the inevitability of a republic, but cannot bring themselves to go further than McGarvie. The question facing such republicans is: how should they react to next year's republican referendum?

The problem for those clustered at the conservative end of the spectrum of republican thought is that they will inevitably perceive real difficulties in the proposal that emerged from the Convention. That proposal does not represent a minimalist republican model (as does McGarvie) but rather a model which has been dragged somewhat further along the republican road by the need of the Australian Republic Movement to render that model more attractive to radical (and potentially to popular) sentiment. The result is that the model has significant problems for conservative republicans, particularly in the appointment process. Thus, why are we to assume that a joint sitting of the two Houses of the Commonwealth Parliament will produce the two-thirds majority necessary to appoint a President? What will happen if this does not occur? How can we be sure that debate in the joint sitting will not be used to publicly traduce presidential candidates under parliamentary privilege? Will good candidates allow their names to be brought forward if this is a possibility? All of these are real, and troubling questions for any republican, but particularly for a conservative republican.

The easy answer, therefore, to the question of "What should a conservative republican do in the referendum?" is "Vote No."; but this is too simplistic an approach. It assumes that the consequence of the failure of a referendum simply will be the continuance of the status quo, followed (perhaps) by a leisurely reversion to the passionless sense of McGarvie. However, the strong, divergent constitutionalism embodied in the radical republicanism so much on show at the Convention - particularly among younger delegates - suggests a very different possibility.

Failure of what might be called the "Turnbull Referendum" may well see the demise, not of republicanism, but merely of the moderate republicanism embodied by the Australian Republican Movement. The population at large already is instinctively attracted to popular election; a far from unnatural result of a failed referendum would be the lurching of the entire republican movement to the constitutional left, propelled by the view that if the cautions of moderate republicanism had failed to carry the day, then the time had come for the people to be given precisely what they think they want. Were this to occur, and were the failure of next year's referendum to frustrate the achievement of a republic for another five years until 2004, there would exist a grave danger that a fundamentally flawed model for a republic headed by a popularly elected president would be adopted by acclamation, not for its logic, but out of resentment that the entire infuriating process had been drawn out long beyond the point at which the view of the Australian people was adequately clear. Moreover, those constitutional adventurists who undoubtedly would be directing the campaign for a popular republic would be in a unique position to attach to its shirt-tails their other, ordinarily less popular, obsessions: sweeping constitutional guarantees of human rights; accretions to judicial power; limitations of federalism, and so forth.

To conservative republicans, such a scenario is to the Convention model as Hell is to purgatory. Consequently, they will need to think very carefully in casting their vote at the referendum. The question cannot be whether they fully approve of the model before them: it is a weak model, with a number of serious deficiencies. Rather, the real issue is whether that model is so bad that they are prepared to risk the constitutional nightmare sketched above. This should be fuel for many sleepless nights.

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[*]Foundation Dean and Professor of Law, University of Notre Dame, Australia

[1] This model would place the sole remaining operative powers of the Queen in the hands of a Council composed, in the first instance, of former governors and governors-general, acting inflexibly on prime ministerial advice.

[2] See for example, J Quick and R Garran, The Annotated Constitution of the Commonwealth of Australia, Angus and Robertson (1st ed, 1901) pp 448-9.

[3] This was proposed by delegate Mischa Schubert, although it is not clear what was intended by this insertion.

[4] Notably delegates Kevin Andrews MHR and Professor Greg Craven.