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	University of NSW Law Journal

New Zealanders are, like Australians, subjects of Her Majesty Queen Elizabeth II. We like to consider ourselves the more loyal subjects, but here too a recent prime minister has proposed removing the Queen as head of state. If some Australians consider abandoning the monarchy as being perilous, it is worth remembering that other constitutional reforms entail greater upheaval. Proportional representation has had greater impact on New Zealand government than establishing a republic is ever likely to have in Australia. The latter change is largely symbolic. This does not render it unimportant - symbols can be vital to national life and identity - but it does require a sense of perspective. Supposing a president were to replicate the drama of 1975, the results would hardly be draconian: The democratic recourse of an election? The removal of an errant head of state?

Under a mixed member proportional system, New Zealanders have embarked on more fundamental reform than republicanism offers. Moreover, they have followed an entirely different process. New Zealand held an indicative referendum in 1992 as to whether it should change its voting system, and, if so, which of four models for reform should be preferred. A binding referendum followed in 1993, pitting the preferred model against the status quo. The result was that all New Zealanders participated in selecting the new electoral system. Those who favoured the status quo had some input into what would happen should the country decide upon change. In Australia, many monarchists at the Convention effectively abstained from influencing the choice of model to be put to the people. This was welcomed by those who feared monarchists would choose conservatively and support the Prime Minister's `least worst' option, the McGarvie model (favoured predominantly by appointed rather than elected members). Nevertheless, it begged the question of who should choose the preferred republican model: the republicans or all delegates? There is a case to be made for the former, but it is worth noting that New Zealand took the contrary approach when considering constitutional reform - and did so by way of plebiscite. In Australia, many Convention delegates (not least the Prime Minister) sought to avoid a plebiscite for fear that opinion polls might prove correct and the public would endorse popular election of the head of state, potentially the option most disruptive to the present system.

Achieving constitutional change is easier in New Zealand than in Australia. A 53.8 per cent majority sufficed for the adoption of proportional representation. In Australia, constitutional reform requires a referendum majority in four of the six states, in addition to a majority nationally of all votes cast. Thus the 1977 proposal for simultaneous dissolutions failed, despite receiving 62 per cent of the national vote. Only 8 of 42 referendums have succeeded, meaning that Convention delegates advocating the preferred republican model were concerned to make concessions towards other groupings, not only to win support in the Convention but with an eye to the referendum campaign. New Zealand electors voted for proportional representation over the opposition of the two leading political parties, reflecting a disenchantment with politicians of all persuasions. This contrasts with the position in Australia, where the support of the Prime Minister is considered important if a referendum is to succeed.

John Howard helped ensure that a popular election model would not be put to the people. Models proposed by Bill Hayden and the Direct Presidential Election Group were the first to be rejected. The Australian Republican Movement (ARM) model selected provides for the head of state to be appointed by a two-thirds majority in Parliament. The bitterness of some direct election delegates has since raised the spectre of a combination of radical republicans and conservative monarchists defeating the 1999 referendum campaign. Such a prospect is somewhat ironic, given that the direct election model severely circumscribed the public's choice of president. The Commonwealth Parliament was to choose (by a two-thirds majority) three or more candidates to contest a presidential election. If a weighted parliamentary majority could severely limit the choice of president, was it unthinkable that that majority make the final choice? Bill Hayden's proposal (that any person receiving the endorsement of one per cent of voters be entitled to compete in a presidential election) contained a double irony: of the four models in contention, it provided the most direct form of election, yet it received by far the least support, and it was proposed by a supporter of the monarchy.

Appointment by a two-thirds majority in Parliament was alleged to have two significant advantages. First, that it was more likely than direct election to avoid a politician becoming head of state. Opinion polls favouring popular election were interpreted as a desire to remove the appointment from the hands of politicians, in order to avoid a politician being appointed, rather than in order to elect someone to check those politicians. In an attempt to appease direct election supporters, provision for more extensive community involvement in the nomination process was grafted onto the original ARM model. However, the final model approved gives little of substance. The Community Consultation Committee's shortlist need not be revealed, and the prime minister and leader of the opposition can effectively ignore its recommendations.

Second, the parliamentary appointment model was thought more likely to avoid the head of state believing he or she had a popular mandate for independent action. John Howard suggested this was not necessarily true. A president would be appointed by a more significant parliamentary majority than the prime minister and might feel emboldened to defy the government of the day. The ARM model indirectly countered this criticism by adopting a provision entitling the prime minister to dismiss the president, although at risk of an election if the House refused to endorse the action within 30 days. The power of prime ministerial dismissal suggests it is more important to deter a politically adventuresome head of state, than to provide security of tenure against improper prime ministerial pressure. Government control of the House of Representatives calls into question the supposed protection of the House having to ratify the dismissal of a head of state. Rather than replicating the current system, under which the Queen (utilising one of her few powers pertaining to Australia) could delay, question or refuse advice to dismiss her Governor-General,[1] the ARM model, as amended, provides less safeguard for the head of state than the Republic Advisory Committee suggested in 1993 and the Keating Government proposed in 1995 (dismissal by a two-thirds parliamentary majority).

The answer to an unduly assertive president might have been to deny that office any legal powers beyond the formal or symbolic. Relocating the Governor-General's powers in other institutions would create a constitutionally powerless head of state, as epitomised by the King of Sweden or the Emperor of Japan. Malcolm Turnbull has said that this would not be possible given the Senate's ability to create a constitutional crisis and the consequent need for some form of constitutional umpire. More is the pity, as it was the consensus of the Convention that Australia have a largely ceremonial head of state.[2] Here again, there is a contrast with New Zealand, where there would be no legal impediment to denying a president discretion in constitutional matters and relocating the appropriate powers in the House of Representatives.[3]

New Zealand is less likely to become a republic than Australia. There is no impetus similar to that of 1975, there are no popular movements demanding change and there has been little public consideration of the issue. Former prime minister Jim Bolger argued the case, but his was a lone political voice.

The mechanics would be much less complicated than in Australia. The New Zealand Parliament has the competence to abolish the monarchy, although it would be unlikely to do so unless a referendum was held and won on the issue. A legal difficulty some allege is the Crown's role as signatory to the Treaty of Waitangi. They argue that Maori consent would be a prerequisite for the establishment of a republic. However, the better view is that the Government's Treaty obligations would continue unaffected, thus obviating the need for separate Maori concurrence (at least as an obligatory requirement).[4] The Convention avoided any comparable indigenous challenge. Indigenous Australians lack a similarly perceived relationship with the Crown. Aboriginal delegates limited their demands to greater recognition in the Constitution and its preamble. The legal difficulties for Australia in becoming a republic arise from questions of federalism and States' rights.

Labour MP (and former prime minister for a period in 1990), Mike Moore, has sought to activate constitutional debate in New Zealand. His draft Constitutional Convention Bill proposes that the party leaders establish an Eminent Persons Group to promote constitutional discussion and that a convention then meet to consider a raft of issues, including republicanism, a written constitution, the right of appeal to the Privy Council, review of the electoral system, an entrenched Bill of Rights and the status of the Treaty of Waitangi. The Australian Convention proposed that there be a further, more wide-ranging convention after the advent of a republic, a suggestion which bears some similarity to Moore's ideas in terms of breadth of constitutional issues raised.

Much could be learnt from Australia if New Zealand were to hold a constitutional convention (albeit the prospect must be considered unlikely). The Convention held in Canberra was remarkable for the diversity of representation and opinion, for the vigour and energy it brought to bear, and for the attention it focused on republicanism and Australia's constitutional arrangements. There was a sustained debate about Australia's constitutional future, one which engaged the delegates, the media and the public.

The passion and commitment to republicanism in Australia is self-evident. Yet Australian republicans run the risk of carrying their divisions into the referendum campaign and endangering any prospect of success. For what purpose? How soon would a future government be prepared to resurrect the issue? How likely is a convention favouring direct election? Would republicans rally around an elected presidency after the defeat of a parliamentary appointed one? New Zealand lags behind Australia in terms of preparedness to consider abolishing the monarchy. However, one suspects that when that time comes, there will be a less heated debate, and it will be altogether easier to decide on a republican future and the form this takes.

[*]Lecturer in Law, University of Canterbury, Christchurch, New Zealand; PhD (Cambridge), BA (Hons) (Canterbury), LLB (Victoria University Wellington).

[1] Refusal of such advice is highly improbable to say the least. On the Queen's reserve powers in relation to New Zealand, see FM Brookfield, "The Monarchy and the Constitution Today: A New Zealand Perspective" [1992] NZLJ 438 at 443.

[2] Excepting Ted Mack's suggestion of an executive presidency and an earlier Law Council proposal to make the prime minister head of state. Monarchist arguments that Australia has two heads of state were irrelevant to the issue of whether the British monarch should be Queen of Australia. The point would not arise in New Zealand: s 2 of the Constitution Act 1986 provides that the sovereign in right of New Zealand is the head of state of New Zealand and the Governor-General is the sovereign's representative.

[3] AP Stockley, "The Governor-General and MMP" [1996] NZLJ 213.

[4] AP Stockley, "Parliament, Crown and Treaty: Inextricably Linked?" (1996) 17 NZULR 193.