Lincoln, the crown succession and the republic

In January 2013 a change to British succession law was announced, aiming to end discrimination against girl children. If Kate Middleton and William Windsor's expected infant is a girl, the child will be first in line to succeed her father. In speaking of this change, Deputy Prime Minister Nick Clegg commented that existing succession rules 'reflect old prejudices and old fears' having 'no place in modern Britain and certainly not in our monarchy'. Modern Britain does not, he said, 'support laws discriminating on either religious or gender grounds'.

Yet the change does not deal conclusively with the religious question. The new law would end the bar requiring an heir to forfeit entitlement to the throne when marrying a Roman Catholic, yet does not address the issue of children born into such a marriage. Children of Roman Catholics are required by that church to be raised as Roman Catholics, yet the bar against a Roman Catholic's succeeding to the throne remains. Charles Windsor is reportedly concerned as to the consequences for his great grandchildren should 'his grandchild marry a Catholic'.

Although Commonwealth countries have been consulted on the change, it ought have no relevance to Australia in the future. Surely long before any Windsor grandchild marries, much less produces great grandchildren for Charles, Australia will have thrown off the monarchy and be well into a succession of presidents.

Yet the change highlights once more the way contemporary Australia is bound, at present, to a foreign regime under a Constitution itself being a law of the UK Parliament. Insofar as head of state is concerned, just as his mother is not 'one of us', Charles Windsor is most assuredly not 'one of us'. Nor are any of his progeny, present, prospective or putative.

Further, whatever the practice, Australia has been committed for decades not only to the principle of non-sex/gender discrimination, but through comprehensive anti-sex/gender discrimination laws existing since the mid-late 1970s (SA in 1975, NSW and Victoria in 1977), 1980s and 1990s (federally, 1984 and in states and territories variously, with Tasmania in 1994). Laws on religious discrimination are more problematic, with religious exemptions and exceptions denying or limiting coverage of sex/gender discrimination laws where religion and religious institutions are in issue. Still, laws covering discrimination on the basis of religious belief and activity have been introduced throughout Australia, albeit more recently than those covering sex/gender.

In 1999, when the referendum on Australia as a republic took place, these laws were in place, affirming the dissonance between the antiquated monarchical system 'over there' and the reality of Australia as a nation 'here and now'. The debate leading up to the referendum and the outcome emphasised the distance between the country where Australia's head of state is born and lives, and the Commonwealth of Australia, which the British crown purports to rule. Albeit some of those hailing Australia's 'no' vote on the republic claimed this was evidence of a majority adherence to retaining a foreign head of state, the reality was quite different.

Even the Australian Monarchist League (AML) acknowledges this. To the question: 'Why was the 1999 Australian referendum for a republic unsuccessful?' its website makes no reference at all to the monarchy, nor to any of its current members. Rather, according to the AML, the referendum was unsuccessful 'because the majority of the Australian electorate rejected the political arguments in favour of a republic'. People were 'frightened that constitutional change would impact upon their freedoms … enjoyed since Federation in 1901'.

The AML's answer goes on to refer to the question of appointment versus election of the president, ending with a reference to concerns 'that so many politicians and big-businesses were supporting a republic', and questioning 'why they were so relentless in eliminating a system that had served the people, but not their own interests, so well'.

Some Australians, being committed monarchists, did oppose the republic for that reason and said so, through the ballot. However, reflecting upon the 'republic or not' vote, it is evident that the majority of those voting 'no' did so for one or all of three principal reasons:

• Endorsing democracy, in a vote for the president, not a system with president as Parliament's choice;
• Wanting 'one of us' in reality, rather than 'one of us' being one of the elite;
• Wanting a fair and just resolution of Australia's founding by invasion, in other words, a confirmation of Indigenous Australian rights.

The negative response by those in power to the wish of the huge majority of Australians to vote for a president was illuminating. On their part, there appeared to be a fear of loss of power and control over the process, rather than a welcoming of Australians' commitment to the democratic process. Why not support this wish, rather than find all manner of 'reasons' to resist and reject it? What other explanation than apprehension at their own and their parliamentary successors' forfeiture of the 'right' to choose Australia's head of state.

The position of the Australian Capital Territory was interesting in itself. The ACT voted resoundingly 'yes' to the republic – endorsing the appointment of a president by the Australian Parliament. This was interpreted as indicative of superiority on the part of Canberra voters (at least, this was their analysis), yet might be seen as more indicative of a lack of democratic fervour. This would be consistent with the original position of Canberrans in their reluctance to have their own 'voted for' domestic assembly.

Originally, Canberra's Legislative Assembly was an appointed body. When in 1978 a referendum was held asking whether Canberra should have its Legislative Assembly constituted as an independent body of self-government, voted for by the ACT electorate, the answer from Canberrans came back resoundingly 'no'. Self-government was favoured by 30.54% alone, whilst 5.72% favoured local government and 63.7% the status quo. That the people of Canberra did not want self-government was extraordinary in its rejection of the democratic ideal. Still, since 1989 the ACT has voted for its local Legislative Assembly, this system being legislated for after the Territories Minister, Clyde Holding, led the push in federal cabinet for the ACT to elect its own territory government.

On the other hand, in voting strongly for the republic with appointed president, Canberrans simply may have been making a determination that 'republic or bust' was the better way to go, leaving 'what form of republic' for later. Clearly, the majority of Australians were not satisfied with this. Rather than evidence of any lack of faith in their elected federal parliamentarians, it seemed 'we want to decide who' was the impetus. After all, if Dick Smith or Kylie Minogue were voted in by a majority of Australians, this would surely be preferable to having the decision made for us, when that in itself could result, anyway, in appointment of someone with whom Australians did not identify? Why assume the Australian electorate would choose a crass incompetent or someone 'better suited' to another role, and that federal parliamentarians would always appoint a 'suitable' person to the job?

The idea in support of appointment, not election, that 'good' people or 'suitable' people would not stand in a presidential election was bewildering. Surely any 'good' person aspiring to be president would be prepared to seek the people's endorsement, and anyone declining to do so could hardly be considered suitable. There is a hugely humbling factor in having to put oneself 'out there' to await ballot box results. How levelling for the person seeking the presidency to go through this process. How proper and appropriate for any aspirant to ask the people for their agreement or say so. In any event, that is clearly what most Australian voters thought.

As for the proposition that a 'voted for' president would somehow challenge the power and authority of the Parliament, other countries such as Ireland and France manage to vote for a head of state and a government. Why should Australia not be able to devise a system that democratically elects both a president and a government? And why should it be, that in establishing a presidential voting system, we 'must' move to the US model, or that fears of candidates spending 'millions' could not be dealt with by limits on spending and legislating scrutiny and controls, just as for parliamentary elections?

Anyway, voting for the president is what so many wanted, so why, when democracy is craved, should those in power deny it?

Perhaps this – the desire to control who might fill this public office – was at the heart of the 'one of us' argument put by the proponents of the republic who spoke from positions of power themselves. The 'one of us' mantra was reminiscent of the 'bunyip aristocracy' squatters and their cohort wished to introduce when Australia's independence from Britain was first envisaged. A self-interested group sought to establish an Australian House of Lords, yet this was rejected. An elitist ruling class based on and promoting pomp and prejudice did not conform to the desire to create a federated Australia.

The Australian abhorrence of and for elitist notions and institutions was repeated in the 'no' vote for the republic. A majority wanted to ensure that 'one of us' was truly one of us; that we, the people, should decide rather than the decision being made in accordance with ideas endorsing those who have joined the 'right' clubs, know and are known by the 'right' people. That until that time, no woman or Indigenous Australian had ever been promoted into the Governor General's job was stark evidence of this principle determining the choice, first by Britain (crown and government), then by successive Australian governments, of who should be Australia's head of state.

And now to the third principal reason for the 'no' vote, and 'Lincoln'. Spielberg's biopic has President Lincoln struggling to ensure the passage of the Thirteenth Amendment outlawing slavery and involuntary servitude, except as punishment for a crime, while at the same seeking an end to the Civil War. In endeavouring to persuade his cabinet and officials of the necessity for the Thirteenth Amendment, he says: 'We cannot go forward on the international stage carrying with us the scourge of slavery.'

These words resonate for Australia. How could Australia go forth into the world as a 'new' country, a new republic, without resolving the position of Australia's first peoples? How could we proclaim ourselves to be free and independent, without affirming the place of Indigenous Australians as the original owners of the land? How could we presume to take a place on the world stage, in absence of an acknowledgement of 'country'. Whilst this issue remains outstanding, how could we vote 'yes' to the republic?

The republic referendum went forward in tandem with a referendum seeking to have a preamble inserted into the Australian Constitution providing:

'With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good. We the Australian people commit ourselves to this Constitution:

• Proud that our national unity has been forged by Australians from many ancestries;
• Never forgetting the sacrifices of all who defended our country and our liberty in time of war;
• Upholding freedom., tolerance, individual dignity and the rule of law;
• Honouring Aborigines and Torres Strait Islanders, the nation's first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country;
• Recognising the nation-building contribution of generations of immigrants;
• Mindful of our responsibility to protect our unique natural environment;
• Supportive of achievement as well as equality of opportunity for all; and
• Valuing independence as dearly as the national spirit which binds us together in both adversity and success.'

Fewer voted for the preamble than for the republic. The preamble was no Lincolnesque solution. It merely compounded the problem of the Constitution. How could any Australian call it 'ours' when it emanates from a foreign parliament? How could we endorse a Constitution containing few human rights principles and protections, no affirmation of women's right to vote, no recognition of women, ethnic minorities or Indigenous Australians as 'equal'?

The republic debate itself threw up questions about the very construction of the Constitution and its content, so how could this preamble solve anything? The contradiction of voting for a republic simultaneously with voting for a preamble affirming a monarchical Constitution was rendered in stark focus.

Rather than the 'no' vote to the Australian republic being indicative – as some claimed – of the majority of Australian voters' stupidity, it affirmed Australia as a thinking nation, one not to be befuddled by cant, one not fooled by the power-seeking of the already powerful.

The change to British succession laws, and Lincoln's cry from the heart for his country to recognise that a country enmeshed in man's inhumanity to man – and woman – is no great nation and cannot ever, whilst endorsing this sore, become one, should give impetus to Australia's progress to a republic.

Let's trust, next time around, that the majority of Australians are listened to.