A republic without citizens?

Almost 20 years after the failed 'republic' referendum of 1999, several related issues grate on the raw nerves of Australia's backward democracy.

Opposition to an 'Australia Day' based on colonial invasion grows, embarrassment over the lack of an Australian bill of rights persists, confusion reigns over the 'citizenship' of elected politicians, and we still endure the shame of a hereditary, foreign monarchy.

Australia preaches democracy through its diplomacy, its aid program and even its military interventions; but our democratic institutions would not rank in the world's top 100. At the root of the problem is a 19^th century constitution, which is not based on citizens.

How can Australia become a republic without citizens? A republic means that sovereignty resides in the people, quite distinct to the foundations of a monarchy. Yet our 1890s constitution is a British Act of Parliament, to establish a federation of the colonies "under the crown of the United Kingdom … by the Queen's most excellent majesty", and so on. There is no mention of citizens, let alone any assertion that people found the nation's body politic.

This is not just a semantic point. The tokenism of 'indigenous recognition' proposals, lacking substance, is quite consistent with a constitution which does not recognise citizens.

We are surrounded by crown land, crown prerogatives, crown prosecutors and royal commissions. The absence of a 'bill of rights' is quite consistent with the absence of a popular political subject. A simple switch in the head of state's name, from 'governor general' to 'president', with a new preamble, would create a very hollow 'republic'.

Historically, the word 'citizen' has crept into Australian usage, but mainly as a proxy for 'nationality'. Even that took a while. In 1906 the High Court rejected the idea of 'Australian nationality'. Later the Nationality and Citizenship Act 1948 (which became the Australian Citizenship Act 2007) only really addressed the question of 'nationals' and 'aliens'.

The recent dilemma of many federal MPs being disqualified for 'dual citizenship' is technically more to do with perceived 'allegiance to a foreign power'. There is a legal, but no constitutional, requirement that they be 'Australian citizens'. On the other hand, the constitution does require that they swear allegiance to the monarch. Little wonder there is confusion.

Why did the 1999 referendum fail? The 'minimalist model' was crafted by the current Prime Minister Malcom Turnbull, then an advisor to the Keating Labor Government; though the referendum was eventually run under the Howard Government. The idea was to remove the monarchy with as little change as possible. An elected 'president' was seen as possibly creating a popular counter-weight to, and so undermining, parliamentary government. On that argument the proposal was to replace the monarch with a 'president' simply appointed by the parliament. Just a tokenistic mention of 'the Australian people' and of 'the nation's first people' in a preamble. It was plainly an elite proposal.

Almost 55% voted against it (and 60% against the preamble) because the 'no' vote attracted not only monarchists (about one third of voters) but also republicans (including this writer) dissatisfied with the essentially anti-democratic proposal. Turnbull acknowledged that the referendum failed because of the split within the republican camp; but he blamed Howard, the monarchist. Yet the split came from the unpopularity of his elite proposal.

Revival of the republican idea has been forced on our political class by protests at the colonial 'Australia Day', the failure of 'indigenous recognition', the absence of a bill of rights, the dual citizenship fiasco and the embarrassment of a hereditary monarchy. Yet the major parties are paralysed, with both leaders 'theoretical republicans' who like the idea but won't act while the old monarch remains 'on her throne'.

What options remain? The most common practice elsewhere has been electing a Constituent Assembly to draft a completely new constitution. That draft is then put to a popular vote. This process offers the chance to re-found the democracy of the system and update certain foundational themes. However this is an option feared by elites.

Experience across many countries - from South Africa to East Timor to Ecuador to Bolivia - shows that a Constituent Assembly opens up the possibility of popular themes finding a place in the substance of a political system. For example, public health and education systems might be given constitutional protection. Unpopular privatisations of public utilities might be restricted. Public control of natural resources and protection of the natural environment might be mandated. Citizens' rights would be codified. And the status of indigenous communities and their land might be recognised in foundational law.

It is hard to image a satisfactory resolution to any of the recent dilemmas over a national day, indigenous rights, dual citizenship, a bill of rights and the republic without a clear, well-articulated commitment to popular sovereignty in our constitution.

Democracy is a subversive process; it opens up the unexpected. No doubt the corporate media and the elite political class would initially oppose a constituent assembly, even more vehemently than they opposed an elected head of state. Most likely they would persist in the demand for a 'minimalist model'. But can we really have a 'Republic' without citizens?