Seven Golden Stars

Congratulations to Craig Foster AM for being selected Australian of the Year 2023 for NSW!

How timely!

Imagine having the Australian of the Year from one state as our head of state who would replace the King/Queen in an Australian constitutional republic.

There is still a Governor for NSW. There is still a Governor-General for the Commonwealth. There are still the 5 other state Governors who will all continue to maintain our parliaments and keep them humming along as normal.

There would be a round robin of the states so that once every 7 years each state can share the office of head of state. Let’s say in 2023 it is the turn for a man from NSW, then in 2030 it would be the turn for a woman from NSW to be Australian of the Year.

It would be a ceremonial role. Very public. They would meet foreign presidents, perhaps open sessions of parliament, open shows and events, give presentations and awards at schools, and preside over many other events as the guest of honour.

As head of state they would have the most important and prestigious role of unifying all seven divisible Crowns of Australia, just as the King/Queen does now. No one else can do that. It is a very special role. Only Australia’s head of state has that honour.

In the next few years we could experiment with an election process to select the Australian of the Year in a particular state.

I don’t mean to put Craig Foster under pressure. Having been elected to the ARM leadership this is a great opportunity to explore options for a republic.

One option is to convert an existing institution we are all familiar with, modify it so that it is suitable for the task, and test this as a vehicle for replacing the King/Queen with an Australian to serve a fixed term as our head of state.

https://www.nsw.gov.au/media-releases/congratulations-to-2023-nsw-australians-of-year

What is the main purpose or justification for having an Australian head of state?

It’s interesting that Matt Thistlewaite mentions one of the main roles of an Australian head of state is to defend the Constitution. This can narrow the meaning for the role and also define who could be eligible, the method of selecting that person, and the term in office.

Many people are tasked with protecting the Constitution. The High Court and judiciary interpret the constitution and apply their interpretations through their considerations. They protect the law and defend the constitution.

The vice-regal representatives of the King/Queen have recourse to reserve powers to protect our system of government in the rare situations where a government acts unconstitutionally.

A view that our head of state is there to protect the Constitution would be consistent with a framework that tries to merge the two distinct roles of King/Queen and the Governor-General into the new role of an Australian head of state. This is the framework adopted by the ARM. It is usually based on imitating the way that nearly all other former commonwealth nations have become republics.

There is, however, a problem with that approach. While all other former commonwealth nations (bar one) had only one representative or Governor-General of the King/Queen before becoming republics – Australia is unique in that we have seven representatives of the King/Queen. We have a Governor-General for the Commonwealth and a state Governor for each of the six states respectively. Australia has a one-to-many relationship between the King/Queen and their representatives. Most other commonwealth republics, an example being Ireland, only had a one-to-one relationship. That approach will not work for Australia and our federal system with the Commonwealth and states. We can keep the Governor-General and State Governors as the representatives of an elected head of state for the Australian Federation.

I know there is a better way. I know that the Australian head of state can symbolize the unity and integrity of the Australian Federation within Australia and aboard. I know that the head of state can represent the diversity of the Australian people. We can replace the King/Queen with an Australian as our head of state and the nomination and election process can build our civic society and showcase our values of a fair go. We can share the office of head of state around all the six state and the territories equally. We can do better than what we have now. Australians can feel ownership and pride by taking part in the process of nominating, campaigning, and electing a person as head of state who will personally unify all seven divisible Crowns for Australia’s Federation as a constitutional republic. It will be a ceremonial role, and it will belong to the Australian people. We will own it.

To determine the preferences of Australians for a transition from a constitutional monarchy to a constitutional republic, many people have proposed a series of plebiscite questions.

Here are three questions which will give us a full range of options.

Question One – Framework

Would you support replacing the King/Queen and Governor-General with an Australian Head of State for the Commonwealth only? Yes/No?

Yes is for a framework proposed by the ARM and Real Republic groups as a suitable framework for a republic.
No is to keep the existing framework as with the constitutional monarchy where the King/Queen is the head of state for the Commonwealth, the six States, and the Territories all at the same time.

Question Two – Model for a republic

What is your preference on the method to select an Australian Head of State:

1. Australia’s Head of State appointed by a 2/3 Majority of the Federal Parliament (1999 referendum model)
2. Australia’s Head of State selected with a direct election across all of Australia (Real Republic Direct Election model)
3. Australia’s Head of State selected with a state-based direct election in a round robin of the six States, and the Territories combined (Federal Crown of Australia model)
4. Australia’s Head of State selected with a direct election across all of Australia, where candidates are nominated by Commonwealth and State Parliaments (ARM Australia Choice model)
5. Australia’s Head of State to remain as the monarch of the United Kingdom through the line of succession to the British Throne (keep the existing default monarchy).
6. The Prime Minister as Head of Government assumes the role when it is needed (no separate person as Head of State)
7. None of the above – my preferred option is not listed

Preferential vote with one or more consecutive numbers out of these six options. A vote of 1 is the highest preference, and a vote of 6 is the least preferred.

Question Three – the Crown of Australia

Do you agree to abolish the Crown of Australia? Yes/No

Yes – The Australian Commonwealth, States and Territories will abolish the Crown of Australia in the transition to a republic.
No – The Commonwealth, States and Territories will work with the Governments of the UK and Canada to have the Crown of Australia altered so that the rules for succession to the Crown of Australia are democratic and follow the rules as approved by the Australian people in a successful referendum vote.

I am currently reading a book about the wartime Prime Minster John Curtin.
It’s very interesting, and touches on topics of interest of the times – like the vote for Western Australia to secede from the Commonwealth in 1933.
John Curtin’s War: The coming of war in the Pacific, and reinventing Australia, by John Edwards
https://www.amazon.com/gp/product/B074PHRJ9X

I read an interesting fact this afternoon. The Statute of Westminster only applies to three nations today: the United Kingdom, Canada and Australia.

So if we need to change the rules of succession for Australia to democratise the divisible Crown of Australia, we might be able to do that through an agreement with Canada and the UK only.

Last year the Standing Committee on Social Policy and Legal Affairs of the House of Representatives completed an inquiry into the way that referenda are conducted in Australia. One of the main topics was to review the Referendum (Machinery Provisions) Act 1984 and take submissions on how this could be modernised.

The website for the inquiry is here: https://www.aph.gov.au/Parliamentary_Business/Committees/House/Social_Policy_and_Legal_Affairs/Constitutionalreform

The report looks into three main topics:

Chapter 2: Public awareness and education about the Constitution

Chapter 3: Mechanisms to review the Constitution

Chapter 4: Arrangements for the conduct of referendums

I broadly agree with the recommendations. I like the idea of having regular constitutional conventions or similar processes to help educate and engage citizens about the constitution, civics, and how government works.

I also welcome the recommendation to reverse a change made for a previous attempt for a referendum in 2013 where the Yes/No pamphlet was to be mailed out to households only, instead of being mailed directly to every voter. I agree that a hardcopy of the Yes/No pamphlet should be printed and mailed directly to the address of every voter on the electoral roll. I also agree that it would be good to include a neutral section stating what the proposed change is about and that the document also can include images and diagrams. I insist that the document must include the full text of any proposed changes to the constitution in full.

There were some comments and suggestions in the report that I do not agree with, but these were not included in the recommendations.

In particular I do not agree with the idea to issue penalties for what the authorities consider promoting misinformation, in any form of media including social media. My main criticism of the 1999 proposal for a republic and the 2022 Choice model for a republic are that the proposals are THEMSELVES not based on the reality of the divisible Crown of Australia as it is today. The ARM models pretend that we can replace the Queen and Governor-General with an Australia head of state, and that this will adequately replace the monarch as the King/Queen of Australia. That claim built into the 1999 referendum is itself a significant misrepresentation of the truth. The King/Queen as head of state for Australia is simultaneously head of state for the Commonwealth and all six States. The ARM proposal could not in any way achieve the basic aim of converting Australia into a republic because it left out all the states. It was poorly designed. That is a fact. The poor design manifested in the division of the republican camp into those who supported an appointed head of state and those that wanted an elected head of state. The root cause was the inadequate design of the model, based as it was on a misrepresentation of the truth of the Crown in Australia since 1986. If there were fines for “promoting misinformation” the fines would have been issued to prop up a blatant lie and mistruth at root of the problems with the ARM models.

So the question is – what is the Government planning to do with the Referendum (Machinery Provisions) Act to create a greater awareness in the community about constitutional issues?

Here is a table with an outline of difference between the current constitutional monarchy, a constitutional republic with an elected Australian to replace the Queen/King for a fixed term, and finally for the ARM Australia Choice Model.

Topic	Crown of Australia – Monarchy (current)	Crown of Australia – Democratic (Proposed)	ARM Australia Choice Model (Proposed)
Head of State	Monarch – King / Queen of Australia	Elected Australian – “Australian of the Year”	Elected Head of State (title has not been specified)
Republic Head of State replaces	NA	King / Queen of Australia	King / Queen of Australia and Governor-General combined
Term in Office	Lifetime	1 year – starting and ending on the 3rd of September	5 years
Method of Selection	Rules of Succession for British monarch	Direct election in a state or Territories	Two-Party Preferred Election Australia-wide
Method of Nomination	Line of Succession for British monarchy	State and Territories to manage nomination and campaign	State and Commonwealth Parliaments nominate
Method of Election	NA	First Past the post	Preferential Two-Party Preferred
Scope for Election	NA	One State, or Territories combined for the Commonwealth	All of Australia
Time between Elections for a voter	NA	7 years	5 years
Topics for election campaign	NA	Philanthropic activities – mimicking the best of the monarchy	Whatever it takes to win (possible dog whistle politics)
Gender of Elected Head of State	NA	Alternates between men and women each year	Not relevant – the person with highest two-party preferred vote wins
Basis for appointment	Hereditary	Highest vote based on merit	Highest vote based on merit and two-party preference deals
Duties while in office	Ceremonial	Ceremonial	Ceremonial but can exercise codified Reserve Powers
Ideal Example of exemplary Heads of State	Queen Elizabeth II	Queen Elizabeth II	Presidents of the Irish Republic
Has Reserve Powers	Not in practice	NONE at all	Yes – Codified
Representative for Commonwealth	Governor-General	Governor-General	Elected Head of State
Representative for NSW	Governor of NSW	Governor of NSW	Undefined
Representative for Queensland	Governor of Queensland	Governor of Queensland	Undefined
Representative for Victoria	Governor of Victoria	Governor of Victoria	Undefined
Representative for South Australia	Governor of South Australia	Governor of South Australia	Undefined
Representative for Tasmania	Governor of Tasmania	Governor of Tasmania	Undefined
Representative for Western Australia	Governor of Western Australia	Governor of Western Australia	Undefined
Do Representatives have Reserve Powers?	Yes	Yes	Undefined
Relationship between Commonwealth and States	Federal Structure	Federal Structure	As specified in Constitution (but Governors may be appointed by Elected Head of State (GG) which will change the structure of Federation)
Change needed for a constitution republic	NA	Referendum for New Section in Constitution defining Election Process / Agreement between States and Commonwealth on replacing the monarchy with an elected Australian	Referendum for Changes to the constitution – relationship between Commonwealth and States remains undefined
Worst possible Outcome	NA	A state tries to secede from the Australian Federation	A state tries to secede from the Australian Federation
Contingency to avoid a State seceding	NA	Agreement at CHOGM for all Commonwealth realms to define “successors” to the Crown of Australia in accord with referendum outcome – precedent being the Perth Agreement	None – if one or more Australian States were to secede by insisting on staying with the monarchy it may lead to a civil war

The main issue is that the ARM has misunderstood and misrepresented and fundament nature of the Crown in Australia today. In designing their model they seem to have been oblivious (or deliberately have chosen to avoid) the fact that the Crown in Australia is divisible and that there are seven representatives of the Crown. The situation for Australia is unique and requires a fresh approach. Luckily the exisiting system as a constitutional monarchy is perfectly structured to handle the situation and provides an excellent example for how to structure a constitutional republic. All that is needed it to replace the monarch with an elected Australian to serve a fixed term in office as our head of state.

The ARM has ignored Australia’s reality.

Saunders, Cheryl — “The Concept of the Crown” [2015]

MelbULawRw 3; (2015) 38(3) Melbourne University Law Review 873

http://classic.austlii.edu.au/au/journals/MelbULawRw/2015/3.html

This comment below was written in reply to a comment on the Australian Republic Supporters Facebook page where I posted a link to the previous post:

https://www.facebook.com/groups/AusRepublic/permalink/5666111490118490/

***

Thank you for your comment. I will answer some of your points here:

1. “It also does not consider the model that has been agreed by the Australian Republic Movement”

I have been a member of the ARM on and off over the last 2 decades. When I rejoined a year ago the ARM was still claiming to be something of an umbrella group representing the single issue of transitioning from a constitutional monarchy to a republic by replacing the Queen with an Australian as our head of state. I am happy to be part of such a group.

Early this year the executive at ARM released their Australia Choice Model. They did that unilaterally as a fiat accompli. The membership has not “agreed” to any model. The membership has not even been involved in the decision to promote one particular model and move away from being an umbrella group of sorts. I think the intention with the small group running the ARM was always to do exactly what they have done – but claiming the membership “agreed” to it is a far stretch.

Secondly, my approach is based on the current reality – how Australia as a constitutional monarchy actually works now – and posits a framework where we only replace the Queen/King with an elected Australian to serve fixed terms as our head of state and leave everything else as it is.

Even though the spin of the ARM is that they have a similar purpose, the ARM model starts with a mistaken understanding of our system and the results would significantly undermine the checks and balances we have built into our existing system – and that enabled our political and social stability over the last 120 years.

The approach to democratise the Australian Crown is very different to the ACM model proposed by ARM, and the model voted on in 1999. In a post this weekend I will contrast the three frameworks on a number of criteria – comparing reality, with a democratic Australian Crown, against the ACM model from ARM.

2. “the explicitly stated limits on power or the Constitutional changes already written by the ARM”

The explicitly stated limits on power in the ACM is an attempt to partially codify the Reserve Powers of the Governor-General assuming the new elected “President” will replace the Queen and Governor-General combined. There are so many assumptions in the ARM ACM that simply do not stand scrutiny.

Can reserve powers be codified – possibly – will it work – very unlikely. Reserve powers cannot really be codified because we cannot anticipate the all the possible circumstances where they would need to be used. This is a massive topic in itself.

Will the head of state for an Australian republic have reserve powers – in the ARM ACM model YES, in a democratic Australian Crown model – NO. In the model I am proposing we still have a Governor-General as the representative of the elected Head of State for the Commonwealth parliament. The Governor-General would still have reserve powers just as they do now. The elected Head of State would have no recourse to reserve powers – the Governor-General and State Governors keep the Head of State at arms length from any exercise of power – so there is no need for explicitly stated limits of power. The elected Head of State must conform with conventions limiting the Queen/King from exercising power or influencing Parliament. Everyone understands that. There is no wiggle room. There is a heavy weight of history that weighs down on an elected head of state in a democratic Crown to conform to these norms. By contrast – the more you try to codify reserve powers the more you will find Presidents, political parties, and their lawyers combing through the text looking for loopholes and exploiting any slipups as precedents.

The ARM ACM model was written by committee. It was designed to tick boxes but starts from an incomplete understanding of how our system works. That the ARM has written it and promotes it means nothing. It has no legitimacy within the membership of the movement – have the membership voted on it? It was foisted on the group in an authoritarian way by the executive as a fiat accompli. They opened up an online discussion forum where there were many objections about their model – but they stayed silent through most of it and ignored most objections. I think their strategy is simply to bluff it through and push on with media and publicity – hoping that a media company takes it up.

3. ‘And the most glaring error is the final paragraph. “I see this election process for an Australian republic as being completely aligned and in tune with the Voice to Parliament.” It isn’t and the two must be kept separate.’

I see the Voice to Parliament as a change in paradigm. It will be something that complements the usual political discussions and processes. It will be more about people talking about their experiences, how laws and government impact people’s lives in practice, and I think it will become a forum where topics, options and possibilities can be discussed openly and in public. It would still be up to the elected politicians to implement what policies they see fit, and how they see fit. I see the Voice to Parliament as a public forum that is part of civil society, and that encourages people to participate and tell their truth. It is like a feedback mechanism for society. In the past the newspapers served this role, but some of the largest networks have been hijacked by extremists.

A democratic Australian Crown where the election nomination and campaigning processes are designed around philanthropic activities – mimicking some of the best attributes of the monarchy (think of Diana campaigning against landmines and the many community groups, hospitals, charities, etc, the royal family supports) will be a way to engage many people in our society who feel powerless and help them speak their voice. In this way – as a new paradigm that will reinvigorate civil society – I think the Voice to Parliament and a democratic Australian Crown will work together in a way that complements traditional political discourse.

Here is a brief summary of the new model.

What we have now – this is the current reality

We have a constitutional monarchy for Australia.

The King / Queen of the UK is Australia’s Head of State as the monarch.

The rules for succession for the monarchy are the same or all the Commonwealth realms.

The King / Queen provides unity for all the divisible Crowns in Commonwealth realms through the person of the monarch. In the past the indivisible British Crown provided this unity.

By history and convention the monarch cannot interfere with responsible government and is effectively a ceremonial and powerless Head of State.

The monarch has a representative for every divisible Crown. The monarch’s representative only acts on advice of the responsible government, however, the monarch’s representative can have recourse to reserve powers if circumstances warrant it.

There are seven representatives for the monarch in Australia, one each for the seven divisible Crowns in Australia:

• • Governor-General for the Crown in right of the Commonwealth of Australia (starting from September 3, 1939).
  • Governor of NSW for the Crown in right of NSW (starting from March 3, 1986).
  • Governor of Victoria for Crown in right of Victoria (starting from March 3, 1986).
  • Governor of South Australia for the Crown in right of South Australia (starting from March 3, 1986).
  • Governor of Queensland for the Crown in right of Queensland (starting from March 3, 1986).
  • Governor of Western Australia for the Crown in right of Western Australia (starting from March 3, 1986).
  • Governor of Tasmania for the Crown in right of Tasmania (starting from March 3, 1986).

Vision for the future Australian republic with a democratic Crown

We could have a constitutional republic by replacing the monarch with an elected Australian who will serve as our Head of State for a fixed term.

We will have a constitutional republic for Australia.

An Australian is elected to be our Head of State for a fixed term in office.

The rules for succession for the Australian Head of State are defined in a new Section of the Commonwealth Constitution after successfully passing a referendum under Section 128.

There is a formal agreement among the Commonwealth and all six states to accept the elected Head of State as the one person who replaces the monarch as Australia’s Head of State for all the divisible Crowns in Australia. The person who is elected Head of State performs the essential function of unifying the Australian Federation through their person.

As the elected Head of State replaces the monarch, the Australian body politics would insist that the the elected Head of State abides by the Westminster conventions restraining the exercise of power by the monarch. The elected Head of State cannot interfere with responsible government and is effectively a ceremonial and powerless Head of State.

The elected Head of State has a representative for every divisible (democratic) Crown. A representative of the elected Head of State only acts on advice of their responsible government, however, the representative of the elected Head of State can have recourse to reserve powers if circumstances warrant it.

There are STILL seven representatives for the elected Head of State in Australia, one each for the seven divisible (democratic) Crowns in Australia (as listed above).

Everything else stays the same as in the constitutional monarchy.

Summary

This is a very brief outline for how Australia can transition from a constitutional monarchy to a constitutional republic.

This approach is very different to the approaches proposed by the Australian Republic Movement in 1999 and in 2022.

This approach is conservative. It will protect and enhance our liberal democracy and the Westminster system of Government as it has developed in Australia.

Some additional points that I think are important:

• The term of office for an elected Head of State is one year – starting from the 3rd of September.
• A suitable title for an elected Australian Head of State is “Australian of the Year”.
• There is a round robin of the states and Commonwealth so that each state and the Territories combined can elect the Australian Head of State on average once every seven years.
• The gender of the elected Head of state alternates between men and women from year to year.
• Since the term is so short, an elected Head of State would need to serve a 6 month apprenticeship starting on the 3rd of March before their term in office.
• Since the term is short, a retiring elected Head of State is expected to continue to serve for an additional 6 months after their term ends as a mentor to the incoming elected Head of State – to complete their service on the 3rd of March in the year following their term in office.
• An elected Head of State would serve the Australian public for a total of 2 years – starting and ending on the 3rd of March.
• The voting for an elected Head of State is limited to the state or Territories from where the person will be elected from. A voter would expect to vote once every 7 years for the Head of State.
• The States and Territories would take responsibility for the nomination process and campaigning.
• The focus of campaigning for candidates would be around philanthropic activities, raising awareness for community groups and causes, and raising funds for charities, etc. The elected Head of State cannot influence government policies, so they must not campaign on policies or divisive political issues. We would expect the conventions and norms limiting the monarch from expression political views to be applicable through the election campaigns.
• This process may favour people at the beginning of their careers. Many former elected Heads of State may decide to enter politics after their term in office is completed.
• I see this election process for an Australian republic as being completely aligned and in tune with the Voice to Parliament.