The process of republicanisation in Australia

The 1999 referendum question ("Do you approve to alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament?") was a constitutional nonsense, as have been all proposals to become a republic which have been made over the past decades.

Why? Not because becoming a republic of itself is necessarily a nonsense, but because just replacing the Queen and Governor General with a President would have Australia a republic at Commonwealth level, and a constitutional monarchy at State level, with State Governors continuing to report to the Queen according to the constitution of each State. The Commonwealth referendum did not, and indeed could not, address this issue, or bind the States.

What a bizarre polity that would be: part republic and part constitutional monarchy. There is no word to describe such a hopeless abomination - a "farcocracy" perhaps - but that is what the Australian republican movement has effectively been proposing for decades. Indeed, in private correspondence with Governor General Bill Hayden in the 1990's, the Queen's private secretary referred to this as a "hideous possibility".

Each State has its own constitution, and on the republican issue, each State has the power to decide whether or not to make the change, and unless all six States and the Commonwealth so agree, then it can't happen as a nation.

No Commonwealth referendum decision could constitutionally force any State to abolish the Crown in right of that State.

The surrender of the sovereignty of the Crown at State level would require the Crown's consent. The question is: to what new State constitutional arrangement would the Crown be consenting?
Under the republicans' proposed constitutional arrangement, this very fundamental question is ignored. Also, because these arrangements are made under individual State constitutions - not the Commonwealth constitution - the decision rests with each State, and not simply by adoption of a Commonwealth referendum.

For Australia to become republic, a legally workable mechanism for republicanisation of the States that was acceptable to all sitting Premiers (and opposition leaders) would be fundamental.This would require achievement of a detailed political and legal agreement between the seven jurisdictions (including the Commonwealth). This in turn would necessitate a series of constitutional conventions of decision makers (much like the pre-federation ones), attended by the Premiers and Prime Minister, the Attorneys-General (at least seven of them, not including Territories), and opposition leaders (say seven of them).

It might be noted that the Constitutional Convention held in 1998 in Canberra was really an exploration of options exercise, which canvassed various possibilities, but which substantially ignored the role of the States. The pre-federation conventions provide a more practical model for an actual process of republicanisation.

Quite apart from coming to an agreement for the manner of selection and appointment of the new Commonwealth and State Presidents, the myriad of legal details attending such a change would need to be professionally and thoroughly addressed and settled in order to avoid unintended consequences.

In the unlikely event that unanimous agreement between all seven jurisdictions were achieved in the foreseeable future (cf. covid management), all seven jurisdictions would have to prepare legislation, for consent by the monarch. This would in all likelihood require complementary UK legislation.

Getting the monarch's consent to such unanimously prepared legislation would probably be the easiest bit, at which point we might ask ourselves "do we understand what we are giving up?"

The main impetus for becoming a republic appears to be the sentiment that we should have an Australian as Commonwealth head of state (with indeed, no apparent thought of the States' position). Putting aside that Governors-General are now by convention always Australians, the concern is essentially a cultural cringe – a concern that other nations would not take Australia seriously because of this. (This concern seems to have been voiced by assorted republican-advocate commentators, but not by say, Australian trade and foreign policy negotiators who have been successfully concluding numerous international treaties and alliances of advantage to Australia, without any impediment.)

Thus for example, one commentator observed, with a rhetorical sotto voce demeanour of shock and dismay, that the Queen is not even an Australian citizen.

Well, there might be good reason for that. First, as monarch, the Queen is not entitled to vote. By definition, the monarch is not a subject and votes for no one. As an independent non-partisan head of state, the monarch's history of non-voting is itself an ideal confirmation of sovereign non-partisanship.

If it is nonetheless considered important that the monarch be an Australian citizen, this could easily be achieved by making an amendment to the Citizenship Act (Com.), perhaps in a special non-voting category: there's no need to go to all the trouble of becoming a republic just to make the monarch an Aussie.

Having said that, many of Australia's greatest Australians were never Australian citizens, for example: all the AIF soldiers who fought and died in the World Wars, John Curtin, Sir Charles Kingsford-Smith, Sir John Monash, Banjo Paterson, ordinary Mums & Dads & Daves etc. On the other hand, there have been numerous Australians who, citizens or not, lived overseas and always remained Australian, such as author Clive James, musician Peter Allen and Nobel Prize winner Howard Florey.

Australian citizenship did not exist in law until Australia Day 1949. Thus Australia Day is the annual birthday of Australian citizenship, something which Commonwealth Ministers of Home Affairs, rather than celebrating annually, seem puzzlingly determined to keep secret from the Australian population.

All British subjects in Australia who met the residency requirements (which included all aborigines) became Australian citizens in 1949, and concurrently remained British subjects until the passing of the Australia Acts in the 1980s. (Thus for example, Bob Hawke was an Australian citizen and British subject when first elected as Prime Minister, but was no longer a British subject when he left Parliament. Previously, he'd been born a British subject in Western Australia and gained Australian citizenship in 1949 along with everyone else.)

In this overall citizenship context, the facts that the monarch is not an Australian citizen, and does not ordinarily reside in Australia, are really not so compelling as drivers for the creation of a republic. Something more, surely, must be driving its adoption. What? The answer to this - whatever it is - is fundamental to any impetus for the creation of a constitutional convention, because each of the seven jurisdictions with the power to make it happen must be clearly convinced of these substantial reasons – and of their clear electoral support - sufficient indeed, to go to all the time and trouble of doing so.

If just one jurisdiction is not interested, republicanisation can't happen, at least without secession of the uninterested State.

A fundamental point though is that by ignoring the essential constitutional relevance of the States, the whole republican campaign, including the referendum, has been based on a misunderstanding of the Australian federation.
The current republican espousers do not understand the Australian federal legal structure, so they are objecting to a system which they don't understand. That's not a sound basis for proposing anything.

If Australia is to become a republic at some point in the future, a prerequisite will be to convince all six States and the Commonwealth unanimously to:

• firstly, convene a sound constitutional convention process;
• secondly, adopt a comprehensive scheme of legislation to give effect to republicanisation; and
• thirdly, be confident of opposition and general electoral support for the changes.

These prerequisites would all have to be underpinned by nationwide State and Commonwealth voter support to address real and substantial issues driving the choice for republicanisation, whatever those issues might turn out to be……